oversight

Guantanamo Bay Detainees: Facilities and Factors for Consideration If Detainees Were Brought to the United States

Published by the Government Accountability Office on 2012-11-14.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                United States Government Accountability Office

GAO             Report to the Chairman, Select
                Committee on Intelligence, U.S. Senate




                GUANTÁNAMO BAY
November 2012



                DETAINEES

                Facilities and Factors
                for Consideration If
                Detainees Were
                Brought to the
                United States




GAO-13-31
                                               November 2012

                                               GUANTÁNAMO BAY DETAINEES
                                               Facilities and Factors for Consideration If Detainees
                                               Were Brought to the United States
Highlights of GAO-13-31, a report to the
Chairman, Select Committee on Intelligence,
U.S. Senate




Why GAO Did This Study                         What GAO Found
Since 2002, the United States has              As of November 2012, the Department of Defense (DOD) held 166 detainees in
operated military detention facilities at      five separate facilities in conditions ranging from communal living to maximum-
its Naval Station in Guantánamo Bay,           security segregated cells that limit detainee interaction. In addition, DOD
Cuba, to hold individuals detained             maintains facilities and infrastructure dedicated to detention support operations.
during overseas counterterrorism
                                               For example, DOD operates an extensive information-technology infrastructure,
operations. In 2009 the President
directed the closure of these facilities       conducts operations to support the protection of military personnel, and performs
within 1 year. Since then, a number of         other missions at Guantánamo Bay such as securing two courthouses used for
statutes have prohibited the transfer of       military commissions.
Guantánamo Bay detainees to the                Within the United States, DOD operates six corrections facilities that are
United States. GAO was asked to
                                               equipped to confine servicemembers for more than 1 year. On average, as of
review existing U.S. facilities and
identify factors to be considered in the       August 2012, these facilities were operating at about 48 percent capacity, but this
event that restrictions were lifted and        varies across different facilities and housing units. GAO identified from interviews
Guantánamo Bay detainees were                  with DOD officials and analysis of detention operations documents several
transferred to the United States. This         factors that would need to be considered in the event that the Guantánamo Bay
report describes the (1) current               detainees were transferred to one of DOD’s U.S. facilities. The following four
Guantánamo Bay detention facilities            factors, among others such as legal and cost considerations, would have to be
and infrastructure, (2) DOD corrections        considered: (1) ensuring compliance with international law and U.S. laws and
facilities and factors to be considered if     policies; (2) ensuring the continued safety and security of DOD personnel and
these facilities were used to hold the         the detainees, as well as the general public; (3) collecting intelligence information
detainees, and (3) DOJ facilities holding
                                               from the detainees; and (4) maintaining current missions and services provided
individuals charged with or convicted of
terrorism-related crimes, and factors to       by the corrections facilities and associated installations. For example, DOD’s
be considered if these facilities were         current ability to minimize risks to the public is attributable to Guantánamo Bay’s
used to hold the detainees.                    remote location and limited access, whereas DOD corrections facilities in the
                                               United States are generally located on active military installations in close
To conduct its work, GAO reviewed              proximity to the general public. Additionally, DOD officials indicated that locating
relevant laws and policies on detention
                                               detention operations on an active military installation could present risk to the
operations; visited several facilities at
Guantánamo Bay and DOD and DOJ                 installation’s core operations such as administrative and training operations.
sites in the United States selected for        The Department of Justice (DOJ), through its Bureau of Prisons and Marshals
their range of housing configurations;         Service, uses over 2,000 facilities to hold about 280,000 individuals charged with
and interviewed officials at both              or convicted of federal crimes. Facilities range from low to high security and
agencies. GAO’s review is descriptive
                                               provide various conditions of confinement. GAO identified from interviews with
and did not include an evaluation of
whether specific U.S. facilities would         DOJ officials and analysis of detention operations documents several factors that
be suitable for holding Guantánamo             would need to be considered in the event that the Guantánamo Bay detainees
Bay detainees, nor did GAO address             were transferred to one of DOJ’s U.S. facilities. The following three factors,
legal factors that are still being             among others such as legal and cost considerations, would have to be
adjudicated. GAO is not making any             considered: (1) formulation of policies and practices for housing the detainees;
recommendations in this report. In             (2) ensuring the safety of facility personnel, the detainees, and the general
commenting on this report, DOJ stated          public; and (3) identifying adequate space for housing the detainees and
that it has no plans to transfer               maintaining separation of detainees from the current inmate population. For
detainees to the United States. This           example, according to DOJ officials, existing facilities would need to be modified
report is an unclassified version of a
                                               or current inmates relocated because the Bureau of Prisons and Marshals
classified report issued in November
2012.
                                               Service would segregate Guantánamo Bay detainees from the inmate population
                                               for security purposes. Also, as of August 2012, system-wide Bureau of Prisons
                                               facilities were about 38 percent overcrowded, and holding Guantánamo Bay
View GAO-13-31. For more information,
contact Brian J. Lepore at (202) 512-4523 or   detainees could require triple bunking of inmates or expansion of facility capacity
leporeb@gao.gov or David C. Maurer at (202)    in order to maintain security for personnel, inmates, and detainees.
512-9627 or maurerd@gao.gov.
                                                                                        United States Government Accountability Office
Contents


Letter                                                                                    1
               Background                                                                 4
               Characteristics of the Current Guantánamo Bay Detention
                 Facilities and Infrastructure                                           14
               DOD Corrections Facilities in the United States and Factors to
                 Consider If They Were to Hold Detainees                                 24
               DOJ Corrections Facilities in the United States and Factors to
                 Consider If They Were to Hold Detainees                                 33
               Agency Comments and Our Evaluation                                        48

Appendix I     Scope and Methodology                                                     51



Appendix II    Summary of Key Legislation Affecting the Potential to Transfer
               Guantánamo Bay Detainees to the United States                             56



Appendix III   Noninteractive Timeline of Guantánamo Bay Detention Operations            57



Appendix IV    Comments from the Department of Justice                                   61



Appendix V     GAO Contacts and Staff Acknowledgments                                    63



Tables
               Table 1: Detainee Detention and Prosecution Status as of
                        November 2012                                                     9
               Table 2: Guantánamo Bay Detention Facilities as of November 2012          15
               Table 3: Capacity of DOD Level II and III Corrections Facilities as
                        of August 2012                                                   29
               Table 4: BOP Inmates with a History of or Connection to Terrorism
                        by Facility Security Level as of August 2012                     37




               Page i                                     GAO-13-31 Guantánamo Bay Detainees
Figures
          Figure 1: Location of U.S. Naval Station at Guantánamo Bay, Cuba                          6
          Figure 2: Interactive Timeline of Guantánamo Bay Detention
                   Operations                                                                       13
          Figure 3: A Segregated Housing Unit in Camp 5                                             17
          Figure 4: Example of a Camp 5 Cell and Detainee Comfort Items                             18
          Figure 5: Example of a Housing Unit in Camp 6                                             20
          Figure 6: DOD Regional Corrections Facilities and U.S. Disciplinary
                   Barracks                                                                         26
          Figure 7: Sample General-Population Housing Unit, Naval
                   Consolidated Brig Chesapeake, Virginia                                           27
          Figure 8: Location of BOP Facilities in the United States                                 36
          Figure 9: Step-Down Housing Unit, “Supermax,” U.S.
                   Administrative Maximum Facility, Florence, Colorado                              42
          Figure 10: Outdoor Recreation Area, “Supermax,” U.S.
                   Administrative Maximum Facility, Florence, Colorado                              43
          Figure 11: Communications Management Unit Cell, Terre Haute,
                   Indiana                                                                          45




          Abbreviations
          ADX                     U.S. Penitentiary Florence Administrative-Maximum
          AUMF                    Authorization for Use of Military Force
          BOP                     Bureau of Prisons
          DOD                     Department of Defense
          DOJ                     Department of Justice
          Marshals Service        U.S. Marshals Service
          UCMJ                    Uniform Code of Military Justice


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          Page ii                                             GAO-13-31 Guantánamo Bay Detainees
United States Government Accountability Office
Washington, DC 20548




                                   November 14, 2012

                                   The Honorable Dianne Feinstein
                                   Chairman
                                   Select Committee on Intelligence
                                   United States Senate

                                   Dear Madam Chairman,

                                   Since January 2002 the United States has operated military detention
                                   facilities at its Naval Station in Guantánamo Bay, Cuba, to detain
                                   individuals captured during overseas counterterrorism operations. In
                                   January 2009, the President issued an Executive Order directing the
                                   closure of the Guantánamo Bay detention facilities within one year.1
                                   Subsequently, in June 2009 the first in a series of appropriations and
                                   authorization measures limiting or prohibiting the use of appropriated funds
                                   to transfer Guantánamo Bay detainees to the United States was enacted.2
                                   You requested that we review existing U.S. federal facilities and identify
                                   factors to be considered in the event that Guantánamo Bay detention
                                   facilities were closed and legal restrictions on transfer did not continue, and
                                   the 166 detainees currently held in these detention facilities were
                                   transferred to the United States.3 Accordingly, this report describes (1)
                                   current Guantánamo Bay detention facilities and infrastructure; (2)
                                   Department of Defense (DOD) corrections facilities in the United States,
                                   and factors to be considered if they were used to hold Guantánamo Bay
                                   detainees; and (3) Department of Justice (DOJ) corrections facilities in the
                                   United States that hold individuals charged with or convicted of terrorism-
                                   related crimes, and factors to be considered if they were used to hold
                                   Guantánamo Bay detainees.4 We are also issuing a classified version of


                                   1
                                    Exec. Order No. 13492, Review and Disposition of Individuals Detained At the
                                   Guantánamo Bay Naval Base and Closure of Detention Facilities, 74 Fed. Reg. 4897
                                   (Jan. 22, 2009).
                                   2
                                    Pub. L. No. 111-32, § 14103 (2009). See app. II for descriptions of subsequent statutes.
                                   3
                                    For purposes of this report, we use the word “detainees” to collectively refer to the
                                   individuals currently housed at Guantánamo Bay. As discussed later in the report, the
                                   status of these individuals varies.
                                   4
                                    In providing information addressing these objectives, DOJ and DOD officials stated that
                                   the two agencies do not have plans to transfer any Guantánamo Bay detainees to their
                                   facilities in the United States and that such transfer is currently prohibited by law.




                                   Page 1                                              GAO-13-31 Guantánamo Bay Detainees
this report in November 2012. That version includes an additional
appendix, which provides a discussion of Guantánamo Bay facilities used
for classified operations that would need to be considered if the detainees
were transferred to facilities in the United States.

The scope of our work was to provide a descriptive review of the
detention facilities and infrastructure at Guantánamo Bay as well as
existing corrections facilities in the United States. Hence, our review did
not include an evaluation of whether specific U.S. facilities would be
suitable for holding Guantánamo Bay detainees, nor did we address legal
factors that are still being adjudicated such as detainee habeas corpus
rights,5 and right to counsel.6 In addition we are not making
recommendations in this report.

To describe the current Guantánamo Bay detention facilities and
infrastructure, we visited the detention and support facilities at the U.S.
Naval Station Guantánamo Bay. We also reviewed laws and policies
related to DOD’s detention operations, an interagency report on detainees’
status, and DOD reports on conditions of detention at Guantánamo Bay. In
addition, we discussed previous and current detention operations with
officials from the Office of the Secretary of Defense, Joint Staff, U.S.
Southern Command, Joint Task Force-Guantánamo, American
Correctional Association, and another related organization.

To describe DOD corrections facilities in the United States and factors to
consider if they were to hold Guantánamo Bay detainees, we reviewed
DOD corrections policies and manuals and facility capacity data. We also
reviewed analyses conducted in 2009 by DOD as part of its efforts to
determine whether its facilities were equipped to conduct detention
operations. Because analyses previously conducted by DOD to identify
facilities in the United States were based on the assumption that all
detention operations—including intelligence operations and military
commission support—would remain the same, we maintained this
assumption in our description of factors that might be considered in the
event that Guantánamo Bay detainees were moved to DOD facilities in


5
 The constitutional privilege to seek a writ of habeas corpus allows a detained person to
challenge the legality of his or her detention. In Boumediene v. Bush, 553 U.S. 723
(2008), the Supreme Court found that the detainees at Guantánamo Bay have the habeas
corpus privilege, and a number of habeas cases are ongoing in the federal courts.
6
Litigation is ongoing regarding the extent of detainee access to counsel, and other issues.




Page 2                                               GAO-13-31 Guantánamo Bay Detainees
the United States. We conducted site visits and interviewed officials at
DOD corrections facilities, which are operated by the Army and the Navy.
We selected three facilities that represent both services’ operating
procedures and reflect a range of housing configurations, including both
segregated and general-population housing units. There are three
different types of corrections facilities operated by DOD: (1) Level I
facilities, which are used for short-term (under 1-year) and pretrial
confinement; (2) Level II facilities—consisting of five joint regional
corrections facilities (two operated under the Army, and three under the
Navy)—which are used for pretrial confinement and for inmates with
sentences of 5 years or fewer; and (3) one Level III facility, which holds
inmates with sentences exceeding 5 years and inmates sentenced to
death. Because Level I facilities are not intended for long-term
confinement, we limited the scope of our review to the Level II and Level
III long-term incarceration facilities. In addition, we interviewed officials
responsible for management of DOD corrections facilities, including
officials from the Office of the Secretary of Defense, Joint Staff, Army
Corrections Command, and Bureau of Naval Personnel.

To describe corrections facilities in the United States that hold individuals
charged with or convicted of terrorism-related crimes or activities, and
factors for consideration if Guantánamo Bay detainees were transferred
to DOJ facilities in the United States, we reviewed laws and policies
related to Bureau of Prisons (BOP) corrections operations, facility
capacity data, and information related to the number and location of
inmates under BOP custody who had a history of or connection to
terrorism, including those charged with or convicted of terrorism-related
crimes.7 In addition, we reviewed U.S. Marshals Service (Marshals
Service) policies related to facility capacity data and information related to
the number and locations of inmates charged with terrorism-related




7
 BOP identified these inmates by including offenders who have been charged with or
convicted of either a terrorism offense, such as receiving terrorist training, or an offense
with a documented connection to terrorism, such as using the proceeds of criminal activity
to support a terrorist group. In addition, regardless of the nature of the offense, BOP
included inmates who are engaged in, or are under investigation for engaging in,
radicalization and recruitment activities. BOP referred to this entire category of inmates as
inmates with a history of or nexus (connection) to terrorism.




Page 3                                                GAO-13-31 Guantánamo Bay Detainees
                     crimes in the custody of the Marshals Service.8 Also, we interviewed
                     officials from BOP, the Marshals Service, the Office of the Deputy
                     Attorney General, as well as other relevant DOJ component agencies,
                     and we conducted site visits to four facilities selected to reflect diversity in
                     types of housing units and security levels. While it is likely that conditions
                     of confinement and related procedures for the detainees would change if
                     they were moved into DOJ facilities, it is unclear what changes would
                     occur. Thus, for the purposes of this report, when discussing factors for
                     consideration if the detainees were moved to DOJ facilities, we assumed
                     that most conditions and procedures would remain the same. Additionally,
                     we interviewed officials from the Department of Homeland Security.
                     According to Department of Homeland Security officials, its detention
                     facilities are used to detain foreign nationals who are awaiting deportation
                     from the United States, not detainees brought to the United States for
                     law-of-war detention, pretrial detention, or postconviction incarceration;
                     thus we subsequently removed the Department of Homeland Security
                     from the scope of our work. For a full description of our scope and
                     methodology, see appendix I.

                     We conducted this performance audit from January 2012 to November
                     2012 in accordance with generally accepted government auditing
                     standards. Those standards require that we plan and perform the audit to
                     obtain sufficient, appropriate evidence to provide a reasonable basis for
                     our findings and conclusions based on our audit objectives. We believe
                     that the evidence obtained provides a reasonable basis for our findings
                     and conclusions based on our audit objectives.



Background
Military Detention   In response to the September 11, 2001, terrorist attacks, Congress
                     passed the Authorization for Use of Military Force (AUMF), which
                     authorized the President to “use all necessary and appropriate force



                     8
                      Among other missions, the Marshals Service is responsible for housing and transporting
                     all federal prisoners from the time they enter federal custody until the time they are
                     acquitted or convicted and delivered to their designated facility. While the Marshals
                     Service does not classify individuals in their custody as having terrorism-related charges,
                     they used other sources, including media reports and the nature of the pending charges,
                     to identify individuals in their custody who might be considered to have such charges.




                     Page 4                                               GAO-13-31 Guantánamo Bay Detainees
against those … [who] planned, authorized, committed, or aided the
terrorist attacks” against the United States.9 Subsequently, many
individuals detained during military operations in Afghanistan and
elsewhere were transferred to the U.S. Naval Station at Guantánamo
Bay, Cuba—a site designated by the administration for long-term military
detention operations under the authority of the AUMF and in accordance
with international law. Approximately 1,800 servicemembers, civilian
employees, and contractors support detention operations at Guantánamo
Bay. An additional 4,200 individuals support other missions at
Guantánamo Bay, including logistics and regional contingency
operations, as it is the only U.S. naval station in the U.S. Southern
Command area of responsibility.10 The Naval Station encompasses 45
square miles on both sides of Guantánamo Bay, sharing a 17-mile border
with Cuba. (See fig. 1.)




9
Pub. L. No. 107-40 (2001).
10
 U.S. Southern Command operates in Central America, the Caribbean, and South
America and is one of the six geographic combatant commands included within DOD.




Page 5                                           GAO-13-31 Guantánamo Bay Detainees
Figure 1: Location of U.S. Naval Station at Guantánamo Bay, Cuba




According to DOD officials, the installation’s remote location enables
DOD to limit aircraft flights and control maritime access points, and
consequently provides an additional layer of security for the detention
operations. DOD considers most of the individuals held in custody at
Guantánamo Bay to be “unprivileged enemy belligerents” under U.S. and
international law.11 Those detainees are afforded certain legal rights and
protections under both international law and U.S. law. For example,



11
  Section 948a of title 10, U.S. Code, defines an “unprivileged enemy belligerent” as “an
individual (other than a privileged belligerent) who (A) has engaged in hostilities against
the United States or its coalition partners; (B) has purposefully and materially supported
hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda
at the time of the alleged offense under this chapter.”




Page 6                                                 GAO-13-31 Guantánamo Bay Detainees
Executive Order 13492 states that custody at Guantánamo Bay shall
conform with Common Article 3 of the Geneva Conventions, which,
among other things, prohibits “outrages upon personal dignity” and “the
passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court affording all the
judicial guarantees which are recognized as indispensable by civilized
peoples.”12 In addition, various U.S. laws, including the Detainee
Treatment Act13 and the Military Commissions Act,14 govern aspects of
detainee treatment and trial. The President’s January 2009 order for the
closure of Guantánamo Bay detention facilities directed the Secretary of
Defense to undertake a review of the conditions of detention at
Guantánamo Bay, and this review, known as the “Walsh Report,”
reported that the conditions of confinement at Guantánamo Bay
conformed with Common Article 3 of the Geneva Conventions.15
According to DOD, the purpose of military detention is to remove enemy
armed forces from the battlefield, as opposed to criminal incarceration,
which is a punitive measure for individuals convicted of violating domestic
law.

Under the authority of the AUMF, DOD has since January 2002 detained
a total of 779 detainees at Guantánamo Bay. The detainee population
peaked at approximately 680 in June 2003, and the last detainee to arrive
was transferred to Guantánamo Bay in March 2008. The U.S.
government, through an interagency task force, has ongoing efforts to
transfer detainees from Guantánamo Bay to other countries and, since
January 2002, has transferred more than 600 detainees, either to their




12
   “Common Article 3” refers to Article 3 of each of the four Geneva Conventions of 1949
(including, for example, the Convention Relative to the Treatment of Prisoners of War,
August 12, 1949, 6 U.S.T. 3316). In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the
Supreme Court held that Common Article 3 applies to the armed conflict between the
United States and al Qaeda.
13
  Two substantially similar versions of the Detainee Treatment Act of 2005 were enacted,
as title X of Pub. L. No. 109-148 (2005) and title XIV of Pub. L. No. 109-163 (2006).
14
  The Military Commissions Act of 2006, Pub. L. No. 109-366, was later amended by the
Military Commissions Act of 2009, enacted as part of the National Defense Authorization
Act for Fiscal Year 2010, Pub. L. No. 111-84, div. A, title XVIII (2009) (codified at 10
U.S.C. § 948a, et seq.).
15
 DOD, Review of Department Compliance with President’s Executive Order on Detainee
Conditions of Confinement (Washington, D.C.: February 2009).




Page 7                                              GAO-13-31 Guantánamo Bay Detainees
home country or to a third country.16 In addition, in 2009, one detainee
was transferred to the United States for trial and, in 2010, was convicted
in a U.S. civilian court. He is currently serving a life sentence in a BOP
facility in Florence, Colorado.

As of November 2012, 166 detainees were being held in military
detention at Guantánamo Bay. Also, as of November 2012, 3 of these
detainees had been convicted of crimes by military commissions at
Guantánamo Bay.17 Additionally, 7 detainees—including the 5 individuals
accused of planning the September 11 attacks—have charges pending
and face potential trial by military commissions.18 According to DOD
officials, the U.S. government, through an interagency task force, is
currently negotiating with other countries to transfer more than one-third
of the remaining 156 detainees.19 Table 1 reflects the current detention
and prosecution status of all detainees held at Guantánamo Bay as of
November 2012.




16
  One hundred twenty-one of the detainees who have left Guantánamo Bay have been
sent to the Kingdom of Saudi Arabia to participate in programs to reeducate them and
integrate them back into society. For additional information on Saudi Arabia’s rehabilitation
program, see GAO, Combating Terrorism: U.S. Agencies Report Progress Countering
Terrorism and Its Financing in Saudi Arabia, but Continued Focus on Counter Terrorism
Financing Efforts Needed, GAO-09-883 (Washington, D.C.: Sept. 24, 2009). For a video
of GAO interviews with a former Guantánamo Bay detainee, see
http://www.gao.gov/media/video/gao-09-883.
17
  As of November 2012, in addition to the three convicted detainees at Guantánamo Bay,
four other detainees had been convicted by military commissions and subsequently
transferred to other countries. In October 2012, one of the convicted detainees who had
been transferred to another country had his conviction overturned by the U.S. Court of
Appeals for the D.C. Circuit. Of the three remaining at Guantánamo Bay, one has an
appeal pending with the D.C. Circuit.
18
  Six of those with charges pending have been referred to a commission for trial, while
one has had charges sworn by prosecutors but has not yet been referred to a commission
for trial.
19
  These potential transfers are subject to legal limitations, including potential certification
requirements and prohibitions on transfers to certain countries. See, for example, section
1028 of the National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81
(2011).




Page 8                                                 GAO-13-31 Guantánamo Bay Detainees
Table 1: Detainee Detention and Prosecution Status as of November 2012

                                                                                                                                    Number of
Status                         Description of status                                                                                 detainees
Currently in Transfer          Detainees for whom the U.S. Department of State is in current or planned                                       56
Negotiations                   negotiations with the detainees’ home or third country for transfer. These
                               detainees are not currently facing prosecution.
Continued Detention under      Detainees who have been determined to require continued detention to                                           46
the AUMF                       protect against a significant threat to the security of the United States. These
                               detainees are not currently facing prosecution.
Conditional Detention          Detainees from Yemen who will not be transferred until one of the following is                                 30
                               satisfied (1) the security situation improves in Yemen, (2) appropriate
                               rehabilitation programs become available, or (3) appropriate third-country
                                                                         a
                               resettlement options become available. These detainees are not currently
                               facing prosecution.
Possible Prosecution Pending   Detainees whose cases are under review in accordance with a joint DOD-                                         24
                               DOJ protocol to determine if a case is feasible for prosecution and, if so, the
                               appropriate forum and venue for that prosecution.b
Currently Facing Prosecution   Detainees with military commission charges pending.                                                             7
Convicted                      Detainees convicted through a military commission process at Guantánamo                                         3
                               Bay.
Total                                                                                                                                        166
                                           Sources: DOD, DOJ, and Guantánamo Review Task Force.
                                           a
                                            Not all detainees from Yemen are in Conditional Detention status. These conditions were specified in
                                           the final report of the Guantánamo Review Task Force, issued pursuant to Executive Order 13492.
                                           Guantánamo Review Task Force, Final Report (Jan. 22, 2010). They do not necessarily reflect
                                           subsequent legal restrictions on transfers, such as those described in footnote 19. Additionally, while
                                           all detainees facing conditional detention are from Yemen, they do not represent all detainees from
                                           Yemen currently held at Guantánamo Bay.
                                           b
                                           DOD and DOJ, Determination of Guantánamo Cases referred for Prosecution (undated).




Roles of the Federal                       Executive Order 13492, signed by the President on January 22, 2009,
Agencies in Detention and                  directed the closure of the detention facilities at Guantánamo Bay within a
Incarceration                              year and stated that any individuals who remained in detention at
                                           Guantánamo Bay at the time of the closure of its facilities “shall be
                                           returned to their home country, released, transferred to a third country, or
                                           transferred to another United States detention facility in a manner
                                           consistent with law and the national security and foreign policy interests
                                           of the United States.” Following the issuance of this Executive Order, an
                                           interagency working group including officials from DOD, DOJ, and the
                                           Department of Homeland Security began to identify existing facilities in
                                           the United States that could be used for continued military detention if the




                                           Page 9                                                     GAO-13-31 Guantánamo Bay Detainees
decision was made to transfer detainees to the United States.20 Each of
these departments operates confinement facilities in the United States,
consistent with its missions and legal authorities.

    DOD operates a system of corrections facilities in the United States
     that are used for pretrial detention and incarceration of members of
     the U.S. armed forces who are charged with or convicted of violations
     of the Uniform Code of Military Justice (UCMJ).21
    DOJ, through BOP, operates a system of corrections facilities in the
     United States that are used for pretrial detention and incarceration of
     individuals convicted of violating federal laws. BOP’s mission is to
     confine federal inmates in the controlled, safe, secure, humane, and
     cost-efficient environments of prisons and community-based facilities,
     and to provide work and other self-improvement opportunities to
     assist offenders in becoming law-abiding citizens. DOJ’s Marshals
     Service is the enforcement arm of the federal court system and its
     mission includes responsibility for the custody of pretrial federal
     inmates until they are acquitted or convicted, and delivered to the
     designated BOP facility.
    The Department of Homeland Security operates a system of detention
     facilities to detain noncitizens who may be subject to removal from the
     United States under U.S. immigration laws.
According to DOD attorneys, DOD, under the AUMF, has legal authority
to maintain custody of the detainees currently at Guantánamo Bay. A
DOJ official from the Office of the Deputy Attorney General stated that
DOJ would likely need additional authorities to detain law-of-war
detainees for continued detention at BOP facilities, but indicated that he
was unaware of any analysis of the issue because DOJ is not evaluating
transferring detainees to the United States in light of transfer restrictions.
With respect to the three detainees who have been convicted of crimes
by military commissions, the Military Commissions Act provides that,
“[u]nder such regulations as the Secretary of Defense may prescribe, a



20
  These efforts ceased after restrictions, beginning in June 2009, were imposed on the
transfer of detainees to the United States.
21
  The UCMJ is a collection of statutes that govern the military justice system, and is
codified in Title 10 of the United States Code. UCMJ includes punitive articles that define
specific offenses similar to those found in civilian criminal law (e.g., murder, rape, wrongful
use of controlled substances, larceny, and drunk driving) as well as other offenses that
specifically affect good order and discipline in the military (e.g., absence without leave,
disrespect toward superior commissioned officer, or dereliction of duty).




Page 10                                                GAO-13-31 Guantánamo Bay Detainees
                              sentence of confinement adjudged by a military commission…may be
                              carried into execution by confinement …in any penal or correctional
                              institution under the control of the United States.”22 However, while this
                              statute indicates that the three convicted detainees serving sentences at
                              Guantánamo Bay could potentially be confined in DOJ or other U.S.
                              controlled facilities, BOP officials said that BOP would need additional
                              statutory authority in the federal criminal code to take custody of
                              individuals convicted by military commission, like the authority it currently
                              has to confine persons convicted by courts-martial.23 In addition to the
                              above-mentioned legal authorities, since the signing of Executive Order
                              13492 in January 2009, a number of statutes have limited or prohibited
                              the use of federal funds to transfer or assist in the transfer of
                              Guantánamo Bay detainees to U.S. facilities. See appendix II for a
                              summary of key statutes. Prior to the enactment of these statutes, in June
                              2009, one Guantánamo Bay detainee was formally charged with crimes
                              by DOJ and subsequently transferred to the United States. This detainee
                              was transferred by DOD into the custody of the Marshals Service to stand
                              trial in the United States. In November 2010 he was convicted by a
                              federal court, and is currently serving a life sentence in a BOP facility in
                              Colorado.


History of Detention          Over time, DOD’s detention facilities at Guantánamo Bay have evolved
Facilities and Standards of   as the department has constructed new facilities and closed older ones in
Confinement at                response to changes in the size of the detainee population. The original
                              facilities—known as Camp X-Ray—were open for 92 days (in 2002). They
Guantánamo Bay                were preexisting migrant-detention facilities comprised of chain-link
                              enclosures on concrete slabs. Subsequent facilities, called Camps 1, 2, 3,
                              and 4, were built in response to increases in the detainee population and
                              the need to segregate different groups of detainees; for example,
                              individuals who were compliant with facility rules were separated from


                              22
                                10 U.S.C. § 949u.
                              23
                                18 U.S.C. § 4083 (“Persons convicted of offenses against the United States or by
                              courts-martial punishable by imprisonment for more than one year may be confined in any
                              United States penitentiary.”). BOP officials noted that under this statute and article 58 of
                              the UCMJ (10 U.S.C. § 858), which provides that “a sentence of confinement adjudged by
                              a court-martial or other military tribunal … may be carried into execution by confinement
                              … in any penal or correctional institution under the control of the United States … .”, as
                              well as a memorandum of understanding with DOD, BOP houses convicted military
                              uniformed service personnel, who have been formally discharged from their respective
                              service.




                              Page 11                                              GAO-13-31 Guantánamo Bay Detainees
those who were noncompliant. These early facilities were generally
covered, open-air, single-cell structures with steel mesh walls. DOD
subsequently constructed the indoor, climate-controlled facilities that are
currently in use. As shown under the Facilities tab in figure 2, a total of 10
different detention facilities have been used to hold Guantánamo Bay
detainees (see app. III for the noninteractive version of this figure). Of
these, 5 are currently in use: Camp Echo, Camp Iguana, and Camps 5, 6,
and 7.




Page 12                                      GAO-13-31 Guantánamo Bay Detainees
Figure 2: Timeline of Guantánamo Bay Detention Operations

       Interactivity instructions:      Click on the event type to view more information.            See appendix III for the non-interactive, printer-friendly version.
                               November 2001:
                               Start of military detention overseas                                            June 24, 2009: October 28, 2009:
                                                                                                                Supplemental National Defense
                                  January 2002: Detainees begin                                      Appropriations Act, 2009 Authorization Act for
                                  arriving at Guantánamo Bay
                                                                                                                  June 2009: Fiscal Year 2010/Military November 18, 2011:
                                     January 2002:                                                 One detainee transferred Commissions Act of 2009 Consolidated and Further
                                     Camp X-Ray opens                                               to Department of Justice   December 16, 2009:       Continuing Appropriations
                                                                                                              for prosecution  Consolidated             Act, 2012
                                                                                                                               Appropriations Act, 2010
                                                                                                      January 22, 2009:
                                                                                                 Executive Order 13492          January   22, 2010:      December 23, 2011:
                                      April 2002: Camp                                                                          Guantánamo Review
                                      X-Ray closes                                                                                                       Consolidated
                                                                                           March 2008: Last                     Task Force Report        Appropriations Act, 2012
                                                    June 2003: Guantánamo             detainee transferred to                        March 2010:
      Facilities                                    Bay reaches peak population,           Guantánamo Bay                            Camps 2 and          December 31, 2011:
                                                    approximately 680                                                                3 close
                                                                                   December                                                               National Defense
                                                                  October 2004:   2006: Camp                                          February 2011:      Authorization Act for
                                                                  Camp Echo opens    6 opens                                          Camp 1 closes       Fiscal Year 2012

      Detainees

                          2001        2002        2003         2004        2005         2006         2007        2008         2009       2010        2011        2012        2013
      Key executive
      actions
                                                February       April 2004:                    October 17, 2006:                                                     September 2012:
                                                2003: Camp     Camp 5 opens                   Military Commissions                                                  Population of 166
                                                4 opens                                       Act of 2006
      Key                                                                                                                   February 2009: Report      April 15, 2011: Department of
                                           October 2002:                                                                    on conditions of           Defense and Full-Year Continu-
      legislation                          Camps 2 and 3 open                               September 2006:                 confinement at             ing Appropriations Act, 2011
                                     April 2002:                                            Camp 7 opens                    Guantánamo Bay           March 7, 2011: Executive
                                     Camp 1 opens                                                                           issued                   Order 13567
                                 December 2001: Selection                           December 30, 2005:
                                                                                                                                                    January 7, 2011: Ike Skelton
                                 of Guantánamo Bay as a                             Detainee Treatment                     January 2009:            National Defense Authorization
                                 detention site                                     Act of 2005                            Population of 242        Act for Fiscal Year 2011
                              September 18, 2001:                                                                    August 2008:               January 2011:
                              Authorization for the                                                                  Camp Iguana opens          Camp 4 closes for repair
                              Use of Military Force

                                                       Source: DOD, DOJ, and GAO analysis of select executive and legislative actions.




                                                   Page 13                                                                        GAO-13-31 Guantánamo Bay Detainees
                          In September 2006, DOD revised DOD Directive 2310.01E, its policy
                          regarding standards for detainee treatment.24 The standards outlined in
                          the directive ensure that military detainees are treated humanely and in
                          conformity with “the laws of the United States, the law[s] of war, including
                          the Geneva Conventions of 1949, and all applicable policies, directives,
                          or other issuances ….” According to DOD officials, as long as
                          Guantánamo Bay detainees maintain their legal status as military
                          detainees held under the authority of AUMF and remain in DOD custody,
                          DOD’s detention directive and all related laws and standards would
                          continue to be applicable to the Guantánamo Bay detainees if they were
                          transferred to the United States.


                          DOD currently conducts extensive detention operations at Guantánamo
Characteristics of the    Bay, operating multiple facilities that hold detainees and support other
Current Guantánamo        detainee-related missions, such as medical services. In addition, DOD
                          maintains facilities and infrastructure dedicated to detention support
Bay Detention             operations.25 For example, DOD operates an extensive information-
Facilities and            technology infrastructure to support force protection and other missions,
Infrastructure            and maintains and secures legal facilities.


Overview of Current       As of November 2012, DOD held 166 detainees in five detention facilities
Detention Facilities at   on its Naval Station in Guantánamo Bay, Cuba. According to DOD
Guantánamo Bay            officials, all facilities currently in use were designed on the basis of
                          facilities in the United States that meet American Correctional Association




                          24
                            Department of Defense Directive 2310.01E, Department of Defense Detainee Program
                          (Sept. 5, 2006). This directive states that all detainees, regardless of status, will at a
                          minimum receive treatment consistent with Common Article 3 to the Geneva Conventions
                          of 1949. This includes prohibitions on violence, taking of hostages, humiliating or
                          degrading treatment, and the sentencing and carrying out of executions without a court
                          judgment; provision of care for the wounded and sick; and provision of services by an
                          impartial humanitarian organization, such as the International Committee of the Red
                          Cross.
                          25
                            A discussion of facilities used for classified operations can be found in the classified
                          version of this report.




                          Page 14                                                GAO-13-31 Guantánamo Bay Detainees
standards.26 The facilities differ in configuration and detainee population,
and DOD generally places detainees in facilities according to a detainee’s
compliance with facility rules.27 See table 2 for a description of each
detention facility. DOD also provides medical, dental, and behavioral
health services in some of the detention facilities and in separate
dedicated facilities.

Table 2: Guantánamo Bay Detention Facilities as of November 2012

                                                                   Nonsegregated       Segregated
  Facility name            Description of facility                    population        population
 Camp 5                    Four housing units containing single-               1-20            10-30
                           occupancy cells for noncompliant
                           detainees and prisoners.
                           One shared housing unit.
 Camp 6                    Eight shared housing units.                     110-130                  0
 Camp 7                    Segregated single-cell facility, used                   0           10-20
                           for high-value detainees.
 Camp Echo                 Single-occupant structures, with                    5-10                 0
                           shared recreation area.
 Camp Iguana               Communal structures shared by                        1-5                 0
                           detainees who have been
                           designated for release.
Source: GAO representation of DOD data.

Note: Populations of Camps 5, 6, Echo, and Iguana are presented as ranges because specific
numbers of detainees in these camps can change over time as detainees are released or moved
between facilities. The specific number of detainees in Camp 7 can be found in the classified version
of this report.




26
  The American Correctional Association’s Commission on Accreditation provides all
accreditations for BOP institutions. The American Correctional Association’s standards
provide guidance to all correctional organizations on correctional issues such as
programming, officer staffing, and officer safety, as well as physical standards such as
inmate housing, environmental conditions, and exercise and recreation areas. However,
the Guantánamo Bay detention facilities themselves have not been evaluated or
accredited by the American Correctional Association.
27
  An exception to this practice is the small group of detainees deemed to be “high-value,”
who are housed separately from each other and from the other facilities at Guantánamo
Bay regardless of compliance with facility rules.




Page 15                                                       GAO-13-31 Guantánamo Bay Detainees
Camp 5   Camp 5 is the second-most populous detention facility at Guantánamo
         Bay—approximately one-fourth of detainees reside there at any given
         time. It is a maximum-security facility consisting of 100 indoor climate-
         controlled cells divided among four individual cell blocks, each with two
         tiers, and 24 open-air cells. Most of the cell blocks in Camp 5 are
         operated as segregated housing. One block currently serves as shared
         housing. DOD holds three types of detainees in Camp 5:

         (1) Most of the detainees in Camp 5 are held in segregated cells on a
         temporary basis to encourage compliance with facility rules. Once these
         detainees have begun complying with facility rules, they are transferred to
         one of the other camps having more shared living spaces.

         (2) One cell block of Camp 5 houses compliant detainees with similar
         lifestyle habits in shared housing. DOD finished converting this block to
         shared housing in May 2012 in order to decrease the number of
         detainees in another facility. Detainees in the shared housing block can
         access each other’s cells and recreate together, but are separated from
         the other groups of detainees in Camp 5.

         (3) Detainees who have been convicted by military commission at
         Guantánamo Bay and are serving their sentences there are also held in
         Camp 5. These convicted individuals are confined to a cell block tier
         segregated from all other detainees.




         Page 16                                     GAO-13-31 Guantánamo Bay Detainees
Figure 3: A Segregated Housing Unit in Camp 5




In addition to housing units, Camp 5 contains one media room on each
tier—consisting of a television for use by one detainee at a time—and
three outdoor recreation areas. These secured outdoor recreation areas
have exercise equipment but are not large enough for detainees to play
games such as soccer. They are designed such that no more than two
detainees can be present in the same area at a given time, though
detainees may speak with those in adjacent recreation areas. All
detainees assigned to segregated housing units in Camp 5 have access



Page 17                                         GAO-13-31 Guantánamo Bay Detainees
to at least 2 hours of recreation per day with one other detainee; those
who have begun complying with facility rules have access to at least 4
hours of recreation per day. All detainees in Camp 5 also have access to
books and magazines, and compliant detainees may obtain a greater
number of books as well as additional clothing choices. Detainees in the
shared housing unit are provided other privileges as well, such as the
ability to move freely within the tier. Camp 5 also contains a medical
treatment room and a dental chair.

Figure 4: Example of a Camp 5 Cell and Detainee Comfort Items




Note: All detainees receive basic comfort supplies, such as soap, toothpaste, clothing, and religious
items. Compliant detainees receive additional clothing and footwear choices and other incentives.




Page 18                                                    GAO-13-31 Guantánamo Bay Detainees
Camp 6   Camp 6 is the most-populous detention facility at Guantánamo Bay—
         about two-thirds of detainees are held there. It is a medium-security
         detention camp designed after the layout of a U.S. county jail, and it
         consists of eight indoor climate-controlled, two-story housing units that
         each contain 22 individual cells and one large common area. Within each
         housing unit, two cells are reserved for use as a shared pantry and
         library. DOD generally assigns detainees to specific housing units
         according to cultural and lifestyle preferences. For example, detainees of
         the same nationality or detainees who have similar television-viewing
         preferences may share a housing unit.




         Page 19                                    GAO-13-31 Guantánamo Bay Detainees
Figure 5: Example of a Housing Unit in Camp 6




Detainees in Camp 6 are allowed access to one adjacent housing unit as
well as their own unit. Adjacent housing units are connected by a
secured, shared outdoor recreation yard with exercise equipment and an
area for the detainees to play sports such as basketball or soccer. Except
for DOD inspection times, during which detainees are confined to their
cells, detainees can move freely for 20 hours per day in the recreation
yard and the adjacent housing unit; they are confined to their assigned
housing unit the remaining 4 hours per day. Camp 6 also includes


Page 20                                         GAO-13-31 Guantánamo Bay Detainees
                                  medical and dental treatment rooms and staff to provide routine medical
                                  care and medication dispensation.

Camp 7, Camp Echo, and Camp       DOD operates three additional facilities to house certain small groups of
Iguana                            detainees: Camp 7, Camp Echo, and Camp Iguana. Camp 7 holds “high-
                                  value” detainees, such as those accused of planning the September 11
                                  attacks. These individuals are held in climate-controlled segregated
                                  housing units that limit their ability to communicate with each other.
                                  Detainees in Camp 7 have access to up to 4 hours of recreation per day in
                                  secured recreation areas containing exercise equipment; two detainees
                                  may have outdoor recreation at the same time in separate but adjacent
                                  recreation areas. In addition, Camp 7 contains a medical treatment room
                                  and a dental chair. The other two facilities—Camp Echo and Camp
                                  Iguana—house compliant detainees in shared settings. Detainees whose
                                  personal security would be at risk if they were housed in Camp 6 are
                                  assigned to Camp Echo, and detainees who have been designated for
                                  release from Guantánamo Bay are assigned to Camp Iguana.28 These
                                  camps are isolated from each other and from the other camps. Camp Echo
                                  consists of 10 wooden hut-like structures, with each detainee’s housing unit
                                  containing a sleeping cell and a personal living area. Detainees assigned to
                                  Camp Echo may recreate together up to 20 hours per day. DOD uses
                                  unoccupied structures at the Camp Echo facility to support other detention-
                                  related operations, such as detainee-attorney meetings. Camp Iguana is a
                                  communal space that consists of multiple wooden hut-like structures within
                                  a secured fenced area. The detainees can move freely within the fenced
                                  area at all times, and they use the structures for a variety of purposes,
                                  including sleeping, cooking, laundry, and recreation. Although detainees in
                                  Camps Echo and Iguana are afforded more privileges than other
                                  detainees, they must continue to comply with facility rules or they may be
                                  temporarily placed in Camp 5 to encourage compliance.

Medical, Dental, and Behavioral   In addition to detention facilities, DOD operates several facilities that
Health Facilities                 provide medical, dental, and behavioral health care to detainees. In
                                  addition to medical treatment rooms at Camps 5, 6, and 7, DOD operates
                                  a hospital dedicated to detainee care. The detainee hospital is primarily
                                  an in-patient facility with secured cells, but it does provide some
                                  outpatient care such as radiology, surgery, dental, and other medical



                                  28
                                    As of November 2012, DOD has designated three detainees for release, but the
                                  detainees have so far refused offers from third countries willing to receive them.




                                  Page 21                                             GAO-13-31 Guantánamo Bay Detainees
                                services. If necessary, the detainee hospital can leverage the resources
                                of the Naval Station hospital, which is located elsewhere on the base. For
                                example, medical staff can perform minor surgery at the detainee
                                hospital, but major surgery is performed at the Naval Station hospital. In
                                addition, DOD will bring specialists to Guantánamo Bay to treat detainees
                                if required. Camps 6 and 7 also have dental facilities. Furthermore, DOD
                                operates a 12-bed behavioral health unit in a separate facility, which
                                provides care to detainees with mental health issues. Overall, there are
                                about 100 people who provide medical, dental, or behavioral health care
                                to the detainees, including specialized medical linguists.


Detention Support               In addition to the facilities it uses to house and provide services to
Operations                      detainees, DOD maintains facilities and infrastructure dedicated to
                                detention support operations. These operations include (1) physical
                                security and protection for detainees and U.S. military personnel, (2)
                                intelligence collection and analysis, (3) maintenance and security of military
                                commission courtrooms and other legal support. In addition, DOD provides
                                administrative offices, housing, dining, medical, and other necessary
                                support facilities for the approximately 1,800 detention-operations staff
                                members at Guantánamo Bay. On average, the cost to operate
                                Guantánamo Bay detention facilities and support operations is about $114
                                million per year, not including the cost of military personnel or
                                approximately 120 contract linguist staff.29 Some of this funding is
                                dedicated to fixed costs, such as the information-technology infrastructure,
                                and would not change proportionately to changes in detainee population.

Maintaining Physical Security   Several facilities at Guantánamo Bay are used to support DOD’s
and Protection of Detainees     operations to maintain physical security and protection of the detainees and
and U.S. Military Personnel     U.S. military personnel. For example, in one facility, DOD screens and
                                translates—in up to 13 languages—approximately 400 pieces of incoming
                                and outgoing detainee mail each month; according to officials, this figure
                                can increase to more than 1,000 when officials from the International
                                Committee of the Red Cross visit. All operations at Guantánamo Bay utilize
                                an extensive information-technology infrastructure, comprising several
                                networks, over 2,000 computers, and 190 servers. For example, electronic
                                records of all detention camp activities are stored in a computer database.


                                29
                                   This figure reflects the fiscal years 2008 through 2012 budget data for operation of the
                                five detention facilities currently in use; intelligence and security programs; and the
                                support provided to Naval Station Guantánamo Bay for hosting detention operations.




                                Page 22                                               GAO-13-31 Guantánamo Bay Detainees
                              Moreover, DOD policy requires the preservation of all evidence,
                              documents, and recorded information of every detainee now or ever held at
                              Guantánamo Bay.30 Therefore, DOD maintains facilities to store and
                              preserve a variety of information including (1) all electronic data collected,
                              (2) physical evidence obtained at the time of a detainee’s capture, and (3)
                              records of contraband or makeshift weapons seized over the course of
                              detention operations.

Intelligence Collection and   DOD also operates some facilities at Guantánamo Bay exclusively for the
Analysis                      collection of intelligence—through voluntary interviews of detainees—and
                              analysis of this information by linguistic and technical support staff.31
                              According to DOD, it collects this intelligence to provide support to military
                              commissions, Periodic Review Boards,32 the intelligence community, and
                              law-enforcement agencies. According to a 2009 DOD report, given the
                              length of time that most detainees have spent at Guantánamo Bay, the
                              primary focus of the voluntary detainee interviews is to gather information
                              to help ensure the safety and security of the detention facilities and
                              personnel.

Military Commissions and      DOD maintains and secures two courthouses and several office facilities
Other Legal Support           used in the military-commission process at Guantánamo Bay. In 2008,
                              DOD completed construction of a courtroom complex designed
                              specifically to hold commissions for the five detainees accused of
                              organizing the September 11 attacks. It includes five detainee holding
                              cells and nine areas, including the courtroom and office spaces, in which
                              highly classified information may be discussed. Because the facility was



                              30
                                Chairman of the Joint Chiefs of Staff Notice 5761, Preservation of Detainee Records
                              (Feb. 29, 2008).
                              31
                                DOD is required by law to record all detainee interviews. National Defense Authorization
                              Act for Fiscal Year 2010, Pub. L. No. 111-84, § 1080, 123 Stat. 2190, 2479-81 (2009).
                              32
                                In March 2011, the President directed DOD to coordinate a process of periodic review of
                              continued law-of-war detention for detainees. Exec. Order 13567, Periodic Review of
                              Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for
                              Use of Military Force, 76 Fed. Reg. 13277 (Mar. 7, 2011). Section 1023 of the National
                              Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81 (2011), directed DOD
                              to issue procedures for the review boards, and DOD did so in May 2012. Directive-Type
                              Memorandum 12-005, Implementing Guidelines for Periodic Review of Detainees Held at
                              Guantánamo Bay per Executive Order 13567 (May 9, 2012). According to DOD officials,
                              an interagency task force has begun reviewing detainee files. Review boards will
                              ultimately conduct hearings—at which detainees may participate—and make
                              determinations about whether DOD should continue to detain that individual.




                              Page 23                                             GAO-13-31 Guantánamo Bay Detainees
                         designed to allow the discussion of highly classified information, DOD
                         must secure it 24 hours per day. In addition, DOD operates a separate
                         facility that it converted into a courtroom in 2005. This facility utilizes
                         some of the same technology as the other courtroom but is smaller and is
                         cleared for discussion of classified information at a lower level. The facility
                         includes a holding cell for detainees and rooms for detainees to meet with
                         legal counsel. DOD utilizes advanced videoconferencing and court-
                         reporting technology in both courtrooms and it can broadcast proceedings
                         to an observation area adjacent to the larger courtroom, the media facility
                         at Guantánamo Bay, and remote viewing locations in the United States.

                         In addition to the courtrooms, there are several administrative facilities
                         dedicated to legal services and upcoming detainee Periodic Review
                         Boards. One facility will enable the use of secure video teleconferencing
                         during upcoming detainee reviews, and the intelligence collection and
                         analysis staff will provide support to assessments of the potential threat
                         posed by each detainee. In addition, DOD maintains a legal office staffed
                         with approximately 10 attorneys to facilitate detainee-attorney meetings,
                         of which there were 132 between November 2011 and April 2012. This
                         office also contributes support to the military commission process.


                         DOD operates six facilities in the continental United States for confining
DOD Corrections          servicemembers for more than 1 year. Each facility utilizes both general-
Facilities in the        population and segregated housing units and is equipped to manage
                         inmates at all security levels. On average, as of August 2012, these six
United States and        facilities were 48 percent occupied. In the event that the Guantánamo
Factors to Consider If   Bay detainees were transferred to one of these facilities, and all detention
They Were to Hold        operations were to remain the same as they were at Guantánamo Bay,
                         we identified from interviews with DOD officials and analysis of detention
Detainees                operations documents several factors that would need to be considered,
                         such as ensuring compliance with international law and U.S. laws and
                         policies, and ensuring the safety and security of detainees, DOD
                         personnel, as well as the general public, before the facilities could be
                         used for this purpose.33




                         33
                           A discussion of Guantánamo Bay facilities used for classified operations and related
                         factors that would need to be considered if the detainees were transferred to facilities in
                         the United States can be found in the classified version of this report.




                         Page 24                                               GAO-13-31 Guantánamo Bay Detainees
DOD Corrections Facilities   DOD operates a system of corrections facilities in the continental United
in the United States         States that it uses to confine members of the uniformed services charged
                             with or convicted of violations of the Uniform Code of Military Justice
                             (UCMJ). Six of these facilities, operated by the Army and the Navy, are
                             equipped to confine individuals for more than 1 year.34 Five of the six are
                             joint regional correctional facilities—two Army-operated regional
                             correctional facilities and three Naval consolidated brigs—that are used
                             for pre- and posttrial confinement for inmates with sentences of 5 years or
                             fewer. The sixth is the U.S. Disciplinary Barracks at Fort Leavenworth,
                             Kansas, a facility operated by the Army, which holds inmates with
                             sentences exceeding 5 years as well as inmates sentenced to death. Five
                             of these six DOD corrections facilities are accredited by the American
                             Correctional Association, which reaccredits facilities every 3 years to
                             ensure they meet specific national standards related to facility
                             administration and management, physical plant and institutional
                             operations, institutional services, and inmate programs.35 In fiscal year
                             2011, the cost to operate these facilities ranged from approximately $1.6
                             million to $14 million.36 See figure 6 for the names and locations of the six
                             facilities.




                             34
                               The facilities are operated by the Army and the Navy, but individuals from any branch of
                             the military can be confined in any facility. DOD also operates facilities that it uses
                             primarily for inmates with sentences of less than 1 year. For the purposes of our review,
                             we did not consider these facilities in our scope.
                             35
                               At the time of our review, the Naval Consolidated Brig in Chesapeake, Virginia, which
                             opened in August 2011 and had not yet been accredited, was in the accreditation process.
                             36
                               This figure includes facility operations and civilian personnel costs for fiscal year 2011
                             for the Northwest Joint Regional Correctional Facility, Naval Consolidated Brig Miramar,
                             Naval Consolidated Brig Charleston, the Midwest Joint Regional Correctional Facility, and
                             U.S. Disciplinary Barracks. Because Naval Consolidated Brig Chesapeake was opened in
                             2011, historic cost data were not available at the time of this review.




                             Page 25                                              GAO-13-31 Guantánamo Bay Detainees
Figure 6: DOD Regional Corrections Facilities and U.S. Disciplinary Barracks




                                         Each of these facilities comprises both general-population and
                                         segregated housing units. Most inmates are housed in general-population
                                         housing units. These units are similar in design to the shared housing
                                         units in Camp 6 at Guantánamo Bay; they generally include an open
                                         space with shared tables, chairs, televisions, telephones, and showers,
                                         as well as individual cells containing single or double bunked beds, a
                                         toilet, and a sink. Each DOD facility has multiple general-population
                                         housing units, and while capacity of these units varies, typically general-
                                         population units can be configured to hold up to 80 inmates; Navy officials
                                         indicated that when possible they prefer to maintain capacity at 40
                                         inmates. Depending on the facilities’ operating procedures and individual
                                         inmates’ compliance with facility rules, the amount of time inmates in
                                         general-population housing units are required to spend in their cells
                                         varies, as does their access to the shared living space. See figure 7 for a
                                         photographic example of a general-population housing unit.



                                         Page 26                                    GAO-13-31 Guantánamo Bay Detainees
Figure 7: Sample General-Population Housing Unit, Naval Consolidated Brig
Chesapeake, Virginia




Unlike general-population housing units, segregated housing units
prevent inmate interaction, and they do not have a shared living space.
Inmates in segregated units are individually bunked and confined to their
cells for the majority of their time. Similar to the segregated housing units
in Camp 5 at Guantánamo Bay, these cells are used primarily as a
temporary administrative or disciplinary measure for inmates who are
noncompliant with facility rules, who may be a danger to themselves or
others, or who may be at risk of harm from other inmates. Segregated
housing units can also be used as long-term housing for inmates who
have been classified as needing maximum security.

These six DOD facilities are required to manage inmates at all security
levels. When sentenced to a facility, inmates are assessed and assigned




Page 27                                       GAO-13-31 Guantánamo Bay Detainees
a security custody classification.37 These classifications range from
individuals who require limited supervision and maintain jobs outside of
the facility to the most-maximum-security inmates who present the
highest risk of violence. An inmate’s security classification is the basis
upon which he or she is assigned to a housing unit—for example,
medium-custody inmates are housed with other medium-custody inmates.
DOD policy allows for an inmate classification to be reviewed and for
inmates to be reclassified, if appropriate; thus housing-unit security
designations can change over time. An inmate’s classification can also
change as needed based on compliance with facility rules. These six
facilities have the ability to secure inmates requiring additional controls
such as protective custody or restricted communications; for example, the
Midwest Joint Regional Correctional Facility at Ft. Leavenworth has eight
specialized soundproof cells within its segregated housing unit that can
be used for individuals charged with high-profile crimes in order to limit
their communications with other inmates.

These six facilities also have space and infrastructure dedicated to facility
support operations and inmate programs, including administrative offices
and staff rooms; rooms used to facilitate legal and general visits; and on-
site medical, dental, and behavioral health facilities, although inmates
requiring advanced care are transported to separate military or civilian
medical facilities. In addition, these facilities include classrooms for
educational, treatment, and other group programs; space for religious
services; dining areas; shops for work programs (for example, wood and
textile shops); and indoor and outdoor recreation spaces. An inmate’s
freedom of movement around a facility is also based on his or her security
custody classification; for example, inmates requiring minimum security
may move throughout the facility unescorted on an as-needed basis,
whereas inmates classified as needing maximum security require
restraints and two escorts when moving throughout a facility.




37
  Army standards require that this classification be based on several factors including, at a
minimum, the individual prisoner’s offense, attitude, aptitude, intelligence, personality,
adaptation to incarceration, record of performance prior to incarceration, and potential for
further military service.




Page 28                                              GAO-13-31 Guantánamo Bay Detainees
Factors to Consider If the                  On the basis of our interviews with DOD officials and analyses of
Guantánamo Bay                              detention operation documents, we identified several factors that would
Detainees Were to Be Held                   have to be considered in the event that the Guantánamo Bay detainees
                                            were transferred to existing DOD facilities within the United States.
in DOD Corrections                          According to DOD’s 2009 plan and DOD officials we interviewed, if
Facilities in the United                    detainees were transferred to DOD facilities in the United States, DOD
States                                      would plan on providing all of the same detention and support operations
                                            in U.S. facilities that are currently maintained at Guantánamo Bay. While
                                            there is available capacity to house the 166 Guantánamo Bay detainees
                                            across the six DOD facilities included in our scope if detention operations
                                            remained the same (see table 3), the following four factors, among others
                                            such as legal and cost considerations, would also have to be considered:
                                            (1) ensuring compliance with international law and U.S. laws and policies;
                                            (2) ensuring the continued safety and security of DOD personnel and the
                                            detainees, as well as the general public; (3) conducting intelligence
                                            operations; and (4) maintaining current missions and services provided by
                                            the corrections facilities and associated installations.

Table 3: Capacity of DOD Level II and III Corrections Facilities as of August 2012

                                                                                Maximum               Current           Available            Percent
                                                                                 capacity            inmates             capacity           occupied
Naval Consolidated Brig Chesapeake, VAa                                                395                   78                317                20%
Naval Consolidated Brig Charleston, SC                                                 439                 102                 337                   23
Naval Consolidated Brig Miramar, CA                                                    599                 310                 289                   52
Midwest Joint Regional Correctional Facility, Ft. Leavenworth, KS                      512                 215                 297                   42
Northwest Joint Regional Correctional Facility, Joint Base Lewis-                      219                 123                   96                  56
McChord, WA
United States Disciplinary Barracks, Ft. Leavenworth, KSb                              515                 449                   66                  87
Total                                                                                2,679               1,277               1,402                48%
                                            Source: GAO analysis of DOD data.
                                            a
                                             The Naval Consolidated Brig in Chesapeake, Virginia, opened in July 2011 as a result of the
                                            Defense Base Closure and Realignment Commission process. While it was built as a Level II facility,
                                            at the time of our review it was being used as a Level I facility. Level I facilities are for inmates serving
                                            sentences up to 1 year, while Level II facilities are for inmates serving sentences of 5 years or fewer.
                                            b
                                             In 1994, the Army entered into a memorandum of agreement with the BOP to provide space in BOP
                                            facilities for 500 UCMJ inmates. According to DOD officials, as of April 2012 there were about 300
                                            UCMJ inmates being held in BOP facilities.




                                            Page 29                                                        GAO-13-31 Guantánamo Bay Detainees
First, U.S. law prohibits the confinement of members of the armed forces
in “immediate association” with foreign nationals.38 To comply with this
law, DOD would need to relocate UCMJ inmates if detainees were to be
moved to existing facilities. Since this provision in the law does not define
“immediate association,” UCMJ inmates could potentially be relocated
among multiple facilities, or within a specific facility, according to DOD
officials. Additionally, according to DOD officials, for operational and
policy reasons DOD prohibits the commingling of unprivileged enemy
belligerents with those convicted of crimes, as seen in its holding of three
detainees under AUMF authority in the United States. For example, DOD
held one former Guantánamo Bay detainee at the former Naval Brig
Norfolk—which is now closed—and subsequently transferred him to
Naval Consolidated Brig Charleston. DOD officials told us that although
this individual was a U.S. citizen, because he was taken into custody
under AUMF authority he was therefore segregated from all UCMJ
inmates until his transfer to another country.39 According to officials, DOD
did not relocate inmates to another facility, but instead segregated this
detainee from all UCMJ inmates at all times. DOD would also have to
ensure that it maintained separation of detainees and UCMJ inmates
while still conforming to international and U.S. standards for access to
medical care and recreation. According to DOD officials, provision of on-
site medical care for detainees might present a challenge. All DOD
corrections facilities provide medical services on site, although, they are
limited in what they are equipped to provide. As a result, UCMJ inmates
requiring more-complex medical treatments are transported to clinics or
hospitals, but that might be challenging were Guantánamo Bay detainees
to be treated in this way in the United States.

While UCMJ inmates have in the past been colocated in the same
facilities with a few AUMF detainees, the current configuration of these six
facilities may not easily accommodate the 166 currently held at



38
  10 U.S.C. § 812. “No member of the armed forces may be placed in confinement in
immediate association with enemy prisoners or other foreign nationals not members of the
armed forces.” All of the Guantánamo Bay detainees are foreign nationals.
39
  This individual was born in the United States, and subsequent to his detention he gave
up his citizenship and was transferred to Saudi Arabia. In addition to the former
Guantánamo Bay detainee, DOD held two other individuals in its U.S. facilities under
AUMF authority. Neither of these individuals was ever detained at Guantánamo Bay, and
according to DOD officials, in both cases they were fully segregated from UCMJ inmates
until they were charged with federal crimes and transferred to DOJ custody.




Page 30                                            GAO-13-31 Guantánamo Bay Detainees
Guantánamo Bay. In particular this is because DOD’s policies for
separating different categories of inmates and detainees may present
capacity limitations. DOD policies require that within the same facility
UCMJ inmates of different gender and security custody classifications
maintain separate hygiene and sleeping areas, including additional
segregation for those inmates requiring additional controls.40 DOD’s
Guantánamo Bay standard operating procedures also call for segregating
different categories of detainees from each other. According to DOD, the
practice of segregating different categories of Guantánamo Bay detainees
from each other would also be maintained if detainees were transferred to
DOD facilities in the United States. Currently at Guantánamo Bay the
following three categories of detainees are confined separately from one
another, and from all other detainees: (1) detainees designated for
release, (2) “high-value” detainees, and (3) detainees who have been
convicted by military commissions.

Second, according to DOD officials, if detainees were moved to its U.S.
facilities, DOD would need to continue to ensure the safety and security
of DOD personnel and the detainees, as well as ensure the safety and
security of the general public located in close proximity to these facilities.
According to DOD, maintaining the safety and security of its personnel
and the detainees is a key mission area at Guantánamo Bay. For
example, as we observed during our visit to Guantánamo Bay, DOD
takes several precautions to safeguard its personnel’s identities from the
detainees in an effort to prevent any harm from coming to personnel or
their families, and to minimize any attempt by the detainees to
compromise DOD’s detention operations. In DOD corrections facilities,
however, personnel and inmates typically interact regularly throughout the
course of the day. Additionally, in order to conform with international law
and DOD policies, detainees are to be treated humanely and protected
from public curiosity (for example, pictures of detainees’ faces are not
disseminated publicly). According to DOD’s 2009 analysis, four of the six
facilities in our review—the two Ft. Leavenworth facilities and the Miramar
and Charleston brigs—are in public view and this could present a
disadvantage. For example, the general public might be able to view
detainees utilizing the outdoor recreation areas, or detainee privacy and


40
  Housing for all female inmates in the DOD prison system is located in the Naval
Consolidated Brig in Chesapeake, Virginia—which houses females with sentences not
exceeding 5 years—and the Naval Consolidated Brig in Miramar, California—which
houses females with sentences over 5 years.




Page 31                                          GAO-13-31 Guantánamo Bay Detainees
personnel anonymity may be compromised when transporting detainees
off-site for medical care.

Moving the detainees to DOD’s U.S. facilities would also necessitate the
development of operations to ensure the safety of the general public.
According to DOD officials, the physical location of the detainees could
become a target for individuals and groups intent on harming the
detainees, or harming the U.S. military personnel involved in detention
operations—which could result in unintended harm to the general public.
DOD’s current ability to minimize risks to the public is attributable to
Guantánamo Bay’s remote location and limited access, whereas DOD’s
corrections facilities in the United States are generally located on active
military installations in close proximity to the general public. Further,
because the only access to Naval Station Guantánamo Bay is by military
approved flights (including both military flights and commercial flights
contracted by DOD) or ships, all visitors are cleared in advance of their
arrival. If detainees were colocated with UCMJ inmates, according to
DOD corrections officials, DOD may not be able to maintain similar
control over facility access, specifically because UCMJ inmates are
permitted visits from family and friends, and access to U.S. military
installations is not as restricted as access to the installation at
Guantánamo Bay. DOD may also need to consider increased risk when
transporting detainees outside of the facility.

Third, if DOD were to continue to conduct intelligence operations similar
to those conducted at Guantánamo Bay, according to DOD officials, this
could require facilities and infrastructure that may not be readily available
at existing U.S. DOD facilities. For example, DOD would require secure
facilities equipped with recording equipment for conducting detainee
interviews, as well as secure workspaces for intelligence personnel,
documents, and equipment. According to DOD officials, its intelligence
costs might increase if the detainees were moved from Guantánamo Bay
to the United States. That is because most intelligence information
collected at Guantánamo Bay from the detainees is used to ensure the
protection of U.S. military personnel, and relocating the detainees to a
U.S. facility, with more exposure than Guantánamo Bay, may increase
the need for greater protective measures resulting in additional costs to
implement such measures.

Fourth, inmates at U.S. DOD facilities provide services to DOD, and these
and other operations performed on the installation would be affected by
moving Guantánamo Bay detainees to an existing DOD facility. According
to DOD, if DOD were to move all UCMJ inmates from a facility it might


Page 32                                      GAO-13-31 Guantánamo Bay Detainees
                         also have to relocate work programs such as graphic arts, woodworking,
                         as well as textile repair and embroidery for all Army uniforms and related
                         gear. According to DOD, in fiscal year 2011 provision of these services by
                         inmates at the U.S. Disciplinary Barracks resulted in almost $15 million in
                         offset savings. Additionally, according to DOD, locating detention
                         operations on an active military installation could present risk to the
                         installation’s enduring base operations such as administrative and training
                         operations. For example, Ft. Leavenworth is home to the Joint Center for
                         International Security Force Assistance, and it hosts international officials.
                         According to DOD officials, the objection of several foreign nations to the
                         Guantánamo Bay detention operations could affect these international
                         exchanges.


                         DOJ, through BOP and the Marshals Service, uses over 2,000 federal,
DOJ Corrections          state, local, and private facilities to hold about 280,000 individuals
Facilities in the        charged with or convicted of violating federal laws.41 Under current U.S.
United States and        law, DOJ does not consider itself to have authority to maintain custody of
                         DOD detainees under the AUMF. According to DOJ officials, DOJ does
Factors to Consider If   not have plans to transfer any Guantánamo Bay detainees to its facilities
They Were to Hold        in the United States, and such transfer is prohibited by law. BOP and
                         Marshals Service officials also stated that, although no active
Detainees                consideration has been given to the unique issues that would arise in
                         connection with transferring Guantánamo Bay detainees to the United
                         States, on the basis of their experience they could safely and securely
                         house and transport the detainees if requested to do so and if given the
                         necessary resources, planning lead time, and authorities. However,
                         several factors would need to be considered, such as maintaining
                         separation of detainees from the current inmate population; ensuring the
                         safety and security of facility personnel and the detainees; and




                         41
                           In fiscal year 2012, BOP had a budget of about $6.6 billion for salaries and expenses
                         and a staff of about 36,700, which includes administrative, program, and support staff
                         responsible for all of BOP’s activities nationwide. In fiscal year 2012, the Marshals Service
                         had a budget of $1.2 billion and a staff of about 5,500 employees, including U.S.
                         marshals, deputy U.S. marshals, criminal investigators, detention enforcement officers,
                         and administrative staff.




                         Page 33                                               GAO-13-31 Guantánamo Bay Detainees
                             formulating new policies and practices for housing the detainees in DOJ
                             facilities in the United States.42


DOJ Corrections Facilities   BOP has 117 corrections facilities in the United States, where as of July
in the United States         2012 it held over 177,000 federal inmates.43 Many of these facilities
                             consist of both general-population and segregated housing units. BOP
                             confines inmates at all security levels—including those inmates convicted
                             of federal crimes related to terrorism or who otherwise have a history of or
                             connection to terrorism.44 BOP holds inmates in facilities that range from
                             minimum to high security, some of which are called administrative
                             facilities and have special purposes (e.g., the detention of pretrial
                             offenders, or the treatment of inmates with serious or chronic medical
                             problems).45 Currently, BOP has only one high-security maximum-custody
                             facility—its Administrative-Maximum (ADX) facility in Florence,
                             Colorado—to contain the most dangerous, violent, or escape-prone
                             inmates. BOP facility security levels are based on the extent of physical
                             security and supervision provided in the facility. BOP reports that, in fiscal
                             year 2011, system-wide on average, the per inmate costs to house
                             inmates ranges from $73.57 per day in a low-security prison to $94.87 per
                             day at a high-security prison. The Marshals Service is responsible for the
                             custody of about 63,000 individuals, who are held across 22 BOP



                             42
                               A discussion of facilities used for classified operations and related factors that would
                             need to be considered if the detainees were transferred to facilities in the United States
                             can be found in the classified version of this report.
                             43
                               One of these facilities is located in Puerto Rico. As of July 2012, BOP also held about
                             40,800, or about 19 percent, of federal prisoners, in 15 privately managed low- and
                             minimum-security level prisons, in 185 residential reentry centers (also known as halfway
                             houses), and in home detention. According to DOJ, inmates with a history of or connection
                             to terrorism have been referred to residential reentry centers. However, as of July 2012,
                             BOP did not hold inmates with a history of or connection to terrorism in minimum security
                             facilities.
                             44
                               There are a range of federal statutes that DOJ uses to prosecute terrorism-related
                             offenses, some of which specifically address terrorist activities, such as terrorist attacks
                             against mass transportation systems or receiving military-type training from a foreign
                             terrorist organization, and others that address general criminal activities that could be in
                             support of either a terrorist organization or other criminal networks, such as money
                             laundering, immigration fraud, or drug trafficking.
                             45
                               BOP also has seven stand-alone minimum-security facilities. However, BOP does not
                             hold individuals charged with or convicted of terrorist-related crimes or activities in
                             minimum-security facilities.




                             Page 34                                                GAO-13-31 Guantánamo Bay Detainees
facilities, and in about 1,800 state, local, and private facilities.46 According
to Marshals Service officials, the security levels of the BOP, state, local,
and private facilities it uses vary from low security to high security and
administrative facilities. In addition, a facility’s age, configuration, and
capacity may determine the housing units the facility is able to provide.
For example, some facilities provide dormitory-style housing while others
may provide segregated housing units.

As of August 2012, BOP and the Marshals Service had custody of at least
377 inmates charged with or convicted of crimes related to terrorism, or
who otherwise had a history of or connection to terrorism. BOP had 373
of these inmates housed in 98 of its facilities, and the Marshals Service
had the remaining 4 inmates housed in 3 different facilities—2 inmates
were in a BOP facility, 1 was in a privately contracted detention facility,
and 1 was in a county facility.47 See figure 8 for the locations of all BOP
facilities, including the 98 facilities holding individuals with a history of or
connection to terrorism; and see table 4 for the number of BOP inmates
with a history of or connection to terrorism by facility security level.




46
  Generally, the Marshals Service holds more than 80 percent of its inmates in state,
local, and private facilities. The remaining 20 percent are held in 22 BOP facilities that
have allocated bed space for the Marshals Service. Through Intergovernmental Service
Agreements, the Marshals Service contracts with approximately 1,800 state and local
governments for the provision of suitable quarters and the safekeeping, care, and
subsistence of the prisoners in Marshals Service custody.
47
  BOP identified these inmates by including offenders who have been charged with or
convicted of either a terrorism offense, such as receiving terrorist training, or an offense
with a documented connection to terrorism, such as using the proceeds of criminal activity
to support a terrorist group. In addition, regardless of the nature of the offense, BOP
included inmates who are engaged in, or are under investigation for engaging in,
radicalization and recruitment activities. The Marshals Service does not classify
individuals in their custody as having terrorism-related charges. Instead, they used other
sources, including media reports and the nature of the pending charges, to identify
individuals in their custody who might be considered to have such charges.




Page 35                                              GAO-13-31 Guantánamo Bay Detainees
Figure 8: Location of BOP Facilities in the United States




                                          Note: This map excludes BOP minimum-security facilities.




                                          Page 36                                                    GAO-13-31 Guantánamo Bay Detainees
                              Table 4: BOP Inmates with a History of or Connection to Terrorism by Facility
                              Security Level as of August 2012

                                                                                                 Number of facilities that
                                                                       Number of individuals      hold individuals with a
                                                                         with a history of or history of or connection to
                                                                                            a
                                  BOP facility security level        connection to terrorism                    terrorism
                                  Minimum                                                          0                                     0
                                  Low                                                             70                                    28
                                  Medium                                                        123                                     38
                                  High                                                            42                                    16
                                                  b
                                  Administrative                                                138                                     16
                                  Total                                                         373                                     98
                              Source: GAO analysis of BOP data.
                              a
                               BOP identified these inmates by including offenders who have been charged with or convicted of
                              either a terrorism offense, such as receiving terrorist training, or an offense with a documented
                              connection to terrorism, such as using the proceeds of criminal activity to support a terrorist group. In
                              addition, regardless of the nature of the offense, BOP included inmates who are engaged in, or are
                              under investigation for engaging in, radicalization and recruitment activities.
                              b
                               Administrative facilities are institutions with different security levels, including maximum security.
                              They also have special purposes, such as the detention of pretrial offenders, or the treatment of
                              inmates with serious or chronic medical problems.




                              According to DOJ officials, although BOP and the Marshals Service have
                              the correctional expertise to safely and securely house detainees with a
                              history of or nexus to terrorism, DOJ has not made preparations for
                              housing Guantánamo Bay detainees, nor does it have plans to do so.


DOJ Security Classification   BOP has security policies that govern where inmates, including those with
Policies                      a history of or connection to terrorism, are sent for their terms of
                              incarceration. While the Marshals Service does not assign specific
                              security levels to individual inmates, Marshals Service officials told us
                              they consider all inmates under their custody as “high-risk” for the




                              Page 37                                                       GAO-13-31 Guantánamo Bay Detainees
purposes of prisoner handling and transportation.48 According to BOP, the
first step to determine which security level is appropriate for the inmate is
“scoring” the inmate. This is done by taking into consideration information
about the inmate from several sources, including the sentencing court,
the Marshals Service, and other federal agencies. BOP also considers
other factors such as the inmate’s membership in a specific disruptive
group, the inmate’s history of violence, and inmate programming. On the
basis of this information, BOP assigns a score to each inmate. Generally,
an inmate who receives a higher classification score will be placed in a
higher-security facility. In addition to scoring, BOP also considers other
factors such as the inmate’s medical needs, the level of overcrowding at a
facility, and whether an inmate may need to be separated from others,
before assigning the inmate to a facility.

The Marshals Service generally defers to the facility holding the inmate to
conduct a risk assessment on the basis of information provided to facility
officials by the Marshals Service and other law-enforcement agencies, the
U.S. Attorney’s Office, and courts to determine the inmate’s appropriate
custody classification level. The Marshals Service can also recommend
that high-profile inmates, such as some recognized as terrorists, be held
in isolation. While in Marshals Service custody, the one Guantánamo Bay
detainee who was transferred to the United States in 2009 was placed in
a segregated housing unit in a BOP facility in New York City. In another
case, involving a terrorist suspect associated with the September 11
attacks, the Marshals Service made a special agreement with the local
facility where the suspect was being held to provide increased security.
For example, Marshals Service officials stated that they arranged for 24/7
monitoring of this individual, a private cell, and an additional cell for use
by his legal team to conduct meetings.49



48
  According to Marshals Service officials, the Marshals Service assigns inmates under its
custody to a facility on a case-by-case basis, primarily based on the facility’s proximity to
where the individual is indicted, the security measures the facility can provide, the quality
of facility management, the availability of in-facility medical care, and available capacity.
When possible, the Marshals Service prefers to use BOP facilities because they do not
charge for bed space and, because the facilities are DOJ facilities, the Marshals Service
has greater control over the detention of the inmate as compared with state or local
facilities.
49
  According to Marshals Service officials, the Marshals Service must pay for these and
other supplemental security measures such as additional car escorts and staff to and from
the trial location for high-profile inmates in its custody.




Page 38                                               GAO-13-31 Guantánamo Bay Detainees
                    DOJ may also apply additional security procedures for an individual on
                    the basis of security concerns that are not reflected in the classification
                    process; these exceptions are called special administrative measures.
                    Special administrative measures, which must be authorized by the
                    Attorney General, primarily limit an inmate’s communications with other
                    inmates and the outside world (e.g., separation from other inmates,
                    limited telephone privileges, and visitation rights).50 These measures may
                    affect the BOP facility or housing unit where the inmate is placed. The
                    Attorney General may authorize special administrative measures when
                    there is the presence of substantial risk that an inmate’s communications
                    or contact with others could result in death or serious bodily injury to
                    persons, or substantial damage to property. Generally, pretrial inmates
                    subject to the provisions for special administrative measures would be
                    held at facilities that are located within the Judicial District in which they
                    have proceedings. Postconviction inmates subject to the provisions for
                    special administrative measures would generally be held at ADX due to
                    the requirements of the order that dictates specific controls on their
                    housing and communications.

DOJ Conditions of   Conditions of confinement for inmates in BOP facilities can vary on the
Confinement         basis of the facility’s security level, inmate behavior, and other factors.
                    BOP policies state that all facilities, security level notwithstanding, must
                    provide the same basic conditions of confinement, such as clean housing
                    units; nutritionally adequate meals that meet dietary requirements (such
                    as vegetarian or religious diet); access to educational, occupational, and
                    leisure time programming; access to work opportunities; and basic
                    medical and mental health care.51 All BOP facilities are to provide inmates
                    with access to a chaplain and basic religious items according to their
                    religious beliefs. Most inmates in general-population housing units,
                    regardless of security level, are allowed outside of their cells
                    approximately 16 to 17 hours per day. Generally during this time, inmates
                    may move freely within the housing unit and may move to other areas of



                    50
                      28 C.F.R. § 501.3. Special administrative measures may be imposed for a period of up
                    to 120 days, or, with the approval of the Attorney General, up to 1 year and may be
                    renewed. The BOP Director may renew special restrictions within the special
                    administrative measures if the Attorney General or a federal law-enforcement or
                    intelligence agency provides written notification of continued substantial risk related to the
                    inmate’s communications or contacts with other persons.
                    51
                      BOP detention centers and metropolitan corrections centers are not required to offer the
                    full range of programming activities to inmates.




                    Page 39                                               GAO-13-31 Guantánamo Bay Detainees
the facility (such as the dining or work areas) through controlled or
supervised movements throughout the day. In low-security facilities,
inmates live in dormitories and are not confined to a cell. Typically,
general-population inmates at all security levels consume their meals in a
common dining area, such as a dining hall. Inmates in general-population
units also have mail, visitation, and telephone privileges that are subject
to monitoring.52 In addition, BOP requires all its facilities to be accredited
by the American Correctional Association.

BOP also operates specialized housing units that allow it to separate
inmates from the general population. This specialized housing includes its
ADX facility, its Communications Management Units, as well as other
units.53 For example, BOP’s most-dangerous inmates are placed in ADX
because they are perceived as a risk to the institutional security of other
corrections facilities. Some of the 373 terrorism-related individuals in BOP
facilities are confined in cells alone approximately 23 hours a day at ADX.
According to BOP officials, as of February 2012, ADX held 41 of the 373
BOP inmates charged with or convicted of federal crimes related to
terrorism. ADX has multiple housing units that provide a range of
conditions of confinement on the basis of the inmate’s security needs,
including the following:

    Control Unit: The control unit is ADX’s most-restrictive unit and
     houses BOP’s most-disruptive inmates, who are allowed 7 hours of
     out-of-cell recreation in individual recreation areas per week. Control
     unit inmates are also allowed one 15-minute phone call and up to five
     noncontact visits per month.
    Special Security Unit: Generally inmates that have special
     administrative measures are held in the Special Security Unit. These
     inmates are subject to restrictive conditions specific to their special
     administrative measures that can include limited physical contact with
     other inmates; as well as limited communications, visitation, and
     phone calls. In addition, all inmate telephone calls and visits are
     contemporaneously recorded and monitored by the Federal Bureau of


52
  According to BOP, all inmate telephone calls are recorded and randomly monitored,
except for attorney-inmate telephone calls. Inmates may have limited physical contact with
visitors, which may be restricted by facility staff to prevent the introduction of contraband
and ensure the orderly operation of the facility.
53
 For the purposes of this report, we limited our scope to the ADX facility and
Communications Management Units.




Page 40                                              GAO-13-31 Guantánamo Bay Detainees
    Investigation, and written social correspondence is monitored by the
    Federal Bureau of Investigation as well. Special Security Unit inmates
    are allowed a minimum of two 15-minute phone calls and up to five
    visits per month.
   General-Population and Step-Down Units: According to BOP officials,
    the majority of inmates at ADX are held either in general-population
    units or in the step-down unit. The step-down unit is a four-phase
    program in which inmates may progress from more-restrictive to less-
    restrictive phases over a minimum of 36 months on the basis of good
    conduct. For example, inmates in the step-down unit may interact with
    other inmates during their recreation hours and receive more
    telephone time as they progress through the phases. Both general-
    population and step-down unit inmates are allowed a minimum of two
    15-minute phone calls and up to five visits per month.
According to BOP officials, all inmates at ADX are generally kept
segregated from each other; they consume all their meals inside their
cells, except for those in phases three and four of the step-down unit, in
which inmates may share their meals with a small group of other inmates.
Like all BOP facilities, ADX can provide a religiously observant diet. A full-
time chaplain provides for inmates’ religious needs, but BOP officials
explained that group prayers are not allowed at ADX. BOP provides most
educational, religious, and recreational programs to ADX inmates in their
cells through staff visits or by closed circuit television or radios located
inside the inmates’ cells. See figures 9 and 10 for examples of a
segregated housing unit and recreation areas.




Page 41                                      GAO-13-31 Guantánamo Bay Detainees
Figure 9: Step-Down Housing Unit, “Supermax,” U.S. Administrative Maximum Facility, Florence, Colorado




                                        Page 42                                       GAO-13-31 Guantánamo Bay Detainees
Figure 10: Outdoor Recreation Area, “Supermax,” U.S. Administrative Maximum
Facility, Florence, Colorado




In addition to ADX, some individuals with a history of or connection to
terrorism are held in Communications Management Units, which are
administrative units located within two medium-security BOP facilities,
where they are allowed to interact with the other inmates in the unit for up
to 15 hours a day.54 As of February 2012, of the 373 inmates with a
history of or connection to terrorism, 44 were held in these units. In 2006
and 2008, BOP established these units to confine inmates who require
increased monitoring of all communications between inmates and with
persons outside the prison.55 Communications Management Units require
100 percent live monitoring of inmates’ telephone calls and social visits,


54
  According to BOP policy, inmates in the Communications Management Unit at the Terre
Haute Federal Correctional Institution (Terre Haute, Indiana) are ordinarily housed in
double-bunk cells. Inmates in the Communications Management Unit at Marion U.S.
Penitentiary (Marion, Illinois) are ordinarily housed in single-bunk cells.
55
  In 2006, BOP established the Terre Haute Communications Management Unit, and in
2008, the Marion Communications Management Unit.




Page 43                                           GAO-13-31 Guantánamo Bay Detainees
and review of all incoming and outgoing social mail.56 Inmates are allowed
two 15-minute telephone calls per week and 8 hours of visiting time per
month, although no physical contact is allowed during visits. All telephone
calls and social visits are live monitored and recorded, and they must
occur in English only, unless the call is previously scheduled for and
conducted through simultaneous translation monitoring. Other than
increased communications monitoring, BOP officials stated that
conditions of confinement in these units are the same as conditions of
confinement for inmates in other medium-security general-population
housing units, including access to medical and mental health services;
meals meeting inmate dietary requirements served in a common dining
area; access to recreation in a common area daily up to 15 hours per day;
religious service opportunities; and access to leisure and law library
services, table games, television in the common areas, and some aerobic
exercise equipment. See figure 11 for a photographic example of a
Communications Management Unit cell.




56
 Legal and special mail (e.g., attorney, federal courts) can be sealed and delivered to unit
management.




Page 44                                              GAO-13-31 Guantánamo Bay Detainees
Figure 11: Communications Management Unit Cell, Terre Haute, Indiana




Marshals Service policy requires that the facilities it uses to detain
inmates meet minimum conditions of confinement, including 24-hour staff
supervision; three adequate meals per day; availability of adequate
emergency medical coverage 24 hours a day; adequate security,



Page 45                                       GAO-13-31 Guantánamo Bay Detainees
                             sanitation, and hygiene services; and access to prescription drugs. In
                             addition, Marshals Service policy states Marshals should seek to develop
                             intergovernmental agreements with facilities that can provide special
                             prisoner services, such as mental health care.


Factors to Consider If the   As previously stated, DOJ does not consider itself to have authority to
Guantánamo Bay               maintain custody of DOD detainees under the AUMF and has no plans to
Detainees Were to Be Held    house Guantánamo Bay detainees at its U.S. facilities; and BOP and the
                             Marshals Service would need additional statutory authority to take
in DOJ Corrections           custody of Guantánamo Bay detainees. If prohibitions against transferring
Facilities in the United     the Guantánamo Bay detainees to the United States were eliminated, and
States                       BOP and the Marshals Service were authorized to conduct military
                             detention under the AUMF in U.S. facilities, our interviews with DOJ
                             officials and analysis of detention-operation documentation identified
                             several factors—among others such as funding, personnel resources,
                             and planning time—that would need to be considered. These factors
                             include (1) formulation of policies and practices for housing the detainees;
                             (2) ensuring the safety of facility personnel, the detainees, and the
                             general public; (3) identifying adequate space for housing the detainees
                             and maintaining separation of detainees from the current inmate
                             population.

                             First, according to DOJ officials, new operational policies and practices
                             would need to be formulated for housing the detainees in BOP facilities in
                             the United States or in other types of facilities used by the Marshals
                             Service for detention purposes. BOP and the Marshals Service
                             established existing policies and practices pursuant to federal criminal
                             statutes specifically authorizing them to take custody of individuals
                             charged with or convicted of violating a federal law.57 In addition, BOP
                             follows American Correctional Association standards for care and
                             treatment of inmates convicted or charged under U.S. law. According to
                             DOJ officials, these existing policies and practices would not be sufficient
                             if DOJ received new authority to conduct law-of-war detention. New
                             policies and practices that would be needed include standards governing



                             57
                               See 18 U.S.C. §§ 3142(i), 3621(a)-(b), 4001, 4042(a)(2), 4068. Pursuant to statute, DOJ
                             also has authority to take custody of certain persons convicted by courts-martial, offenders
                             in the District of Columbia, and state offenders pursuant to a contract for reimbursement.
                             See 18 U.S.C. §§ 4083, 5003; Balanced Budget Act of 1997, Pub. L. No. 105-33, §
                             11201(a)-(b), 111 Stat. 251, 734.




                             Page 46                                              GAO-13-31 Guantánamo Bay Detainees
(1) the holding of detainees who have not been charged with or convicted
of violating U.S. law, (2) where and how each category of detainee would
be housed, (3) religious and cultural accommodations, (4) visitation by the
International Committee of the Red Cross, and (5) intelligence gathering
and use.

Second, according to BOP and Marshals Service officials, additional
procedures and infrastructure would be required governing where and
how each category of detainee would be held, including their
accommodations. According to Marshals Service officials, they may have
to adopt additional measures to transport detainees to and from BOP
facilities, which could have implications on detainee and public safety. For
example, Marshals Service officials explained that when it had a high-
profile prisoner associated with the September 11 attacks in its custody, it
used extra security vehicles and additional staff to help ensure safety and
security during transport.

Third, according to BOP officials, given its current facility capacity rates,
finding capacity in its facilities for the Guantánamo Bay detainee
population may present challenges. Overall, according to BOP, as of
August 2012, its facilities system wide were 38 percent overcrowded, and
crowding is a relatively higher concern at facilities with higher security
levels, where, according to BOP officials, Guantánamo Bay detainees
would likely be held. Despite current overcrowding, BOP officials said that
if they had custody of the detainees, with adequate resources, they could
accommodate the detainees.58

Finally, BOP officials we interviewed said that if they were to add 166
detainees to their facilities, keeping them completely separated from the
existing inmate population would have an effect on BOP’s operations in
the facility or facilities where the detainees were placed. For example, if
BOP needed to confine detainees to single cells, existing inmates would
have to be moved to create space for the detainees, which could require
that BOP triple bunk some of the current inmate population. According to



58
  BOP expects to activate four newly constructed prisons by 2014, adding about 5,568
beds. In addition, BOP is budgeting for additional contracted bed space—1,000 beds in
2013 and 1,500 the next year, but the addition of these contracted beds is subject to
future appropriations. For additional information on BOP capacity, see: GAO, Bureau of
Prisons: Growing Inmate Crowding Negatively Affects Inmates, Staff, and Infrastructure,
GAO-12-743 (Washington, D.C.: Sept. 12, 2012).




Page 47                                            GAO-13-31 Guantánamo Bay Detainees
                     BOP officials, increasing the number of inmates per cell can affect BOP’s
                     ability to ensure the safety and security of its personnel, inmates, and
                     institutions. Another challenge BOP would face in maintaining separation
                     of detainees and inmates would be in the provision of inmate-provided
                     services including food preparation, commissary operations, and laundry,
                     educational, and religious services. According to BOP officials, if
                     detainees were to have access to these services, BOP would require
                     additional personnel to ensure separation between the detainees and the
                     inmates. For example, while most general–population inmates go to a
                     shared dining hall for their meals—which can be served and prepared by
                     other inmates—to avoid interaction with inmates, detainees would likely
                     not be able to eat meals in shared dining halls, or in dining facilities where
                     other inmates work.


                     We provided a draft of this report to DOD, DOJ, and the Department of
Agency Comments      Homeland Security for comment. The Department of Homeland Security
and Our Evaluation   declined to provide comments, and DOD provided technical comments
                     that were incorporated as appropriate. DOJ provided technical comments
                     as well as a letter making additional written comments, which are
                     reproduced in appendix IV and were incorporated as appropriate.

                     In its letter, DOJ stated that, generally speaking, BOP and the Marshals
                     Service have the correctional expertise to safely and securely house
                     detainees with a nexus to terrorism. However, DOJ reiterated that current
                     law prohibits the transfer of detainees to the United States; DOJ has not
                     made preparations for housing Guantánamo Bay detainees, and does not
                     have plans to do so. DOJ also stated that, given these factors, any
                     discussion of housing detainees in the United States is hypothetical and
                     raises legal, policy, and resource issues that descriptions of current
                     policies and practices contained in this report cannot fully address. We
                     agree that given the legal restrictions on transferring detainees to the
                     United States and DOJ’s stated policy that it does not plan to transfer
                     detainees to the United States, our assessment of factors to be
                     considered if DOD or DOJ facilities were used to hold detainees is
                     hypothetical. Our report provides a descriptive discussion of several
                     factors that would need to be considered should the current legal
                     restrictions be discontinued and detainees were transferred to the United
                     States, but does not purport to provide a comprehensive list of all factors.
                     Our report also clearly states the current legal restrictions and policy
                     decisions against transferring detainees to the United States, and makes
                     no recommendations on the legal and policy issues surrounding



                     Page 48                                      GAO-13-31 Guantánamo Bay Detainees
Guantánamo Bay detainees and whether they should be transferred to
the United States.

DOJ also recommended that we delete Table 4 showing the number of
BOP inmates with a history of or connection to terrorism by facility
security level. We believe the table accurately demonstrates a point DOJ
makes in its comment letter; namely that BOP and the Marshals Service
have the correctional expertise to safely and securely house detainees
with a history of or connection to terrorism. In response to DOJ’s
comment, we added language clarifying that, while DOJ has this
expertise, DOJ has not made preparations or plans to house
Guantánamo detainees.




Page 49                                   GAO-13-31 Guantánamo Bay Detainees
As agreed with your office, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 30 days from the
report date. we will send copies to appropriate congressional committees,
the Secretary of Defense, the Attorney General, and the Secretary of
Homeland Security. In addition, the report will be available at no charge
on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact
Brian J. Lepore at (202) 512-4523 or LeporeB@gao.gov, or David C.
Maurer at (202) 512-9627 or MaurerD@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made key contributions to this
report are listed in appendix V.

Sincerely yours,




Brian J. Lepore
Director
Defense Capabilities and Management Team




David C. Maurer
Director
Homeland Security and Justice Team




Page 50                                    GAO-13-31 Guantánamo Bay Detainees
Appendix I: Scope and Methodology
             Appendix I: Scope and Methodology




             The scope of our work was to provide a descriptive review of the detention
             facilities and infrastructure at Guantánamo Bay, existing military and civilian
             corrections facilities in the United States, and an overview of factors that
             might need to be considered if Guantánamo Bay detainees were moved to
             facilities in the United States. Hence, our review did not include an
             evaluation of whether specific U.S. facilities would be suitable for holding
             Guantánamo Bay detainees. Our description of what factors would need to
             be considered does not include legal issues related to the Guantánamo
             Bay detainees that are currently being adjudicated, such as habeas corpus,
             and right to counsel. We limited our review to corrections facilities in the
             United States operated by the Department of Defense (DOD) and the
             Bureau of Prisons (BOP) and federal, state, local, and private facilities used
             by the U.S. Marshals Service (Marshals Service). Additionally, we
             interviewed officials from the Department of Homeland Security who told us
             that its detention facilities are used to detain foreign nationals who are
             awaiting deportation from the United States, not detainees brought to the
             United States for law-of-war detention, pretrial detention, or postconviction
             incarceration. Thus we subsequently removed the Department of
             Homeland Security from the scope of our work.

             To describe the history and current status of Guantánamo Bay detention
             operations, facilities, and infrastructure, we reviewed relevant
             international law and U.S. laws and policies relating to DOD’s detention
             operations, including Common Article 3 of the Geneva Conventions of
             1949 and relevant sections of Title 10 of the U.S. Code. We also
             reviewed executive orders pertaining to Guantánamo Bay detention
             operations, an interagency report on detainees’ status, and DOD reports
             on conditions of detention at Guantánamo Bay. We conducted a site visit
             to the detention and support facilities at the U.S. Naval Station
             Guantánamo Bay, where we interviewed officials and observed
             operations at Camps 5, 6, Echo, and Iguana, and toured former camps.
             Members of the team also received a detailed briefing on Camp 7 and
             reviewed photographs of the facility. We met with officials and toured the
             detention-support facilities including the courtroom complex, media-
             support facility, detainee hospital, behavioral health center, kitchen
             facility, intelligence operations–support facilities, information-technology
             facilities, visitor lodging, and staff housing. We also met with officials
             responsible for providing legal and International Committee of the Red
             Cross support. In addition, we interviewed officials from the Office of the
             Secretary of Defense, Joint Staff, U.S. Southern Command, Joint Task
             Force-Guantánamo, Congressional Research Service, and American
             Correctional Association. In order to determine the average cost to
             operate Guantánamo Bay detention facilities and support operations, we


             Page 51                                      GAO-13-31 Guantánamo Bay Detainees
Appendix I: Scope and Methodology




obtained data from U.S. Southern Command on funding that the U.S.
Army and U.S. Southern Command provide for detention operations at
Guantánamo Bay. We met with officials to clarify funding sources and
totals, as well as the cost categories not included in these data, and
analyzed the data to determine average funding among fiscal years 2008
through 2012. We conducted a data-reliability analysis of these data by
asking detailed questions of U.S. Southern Command regarding the
origins and means of collection of these data, and determined that the
data were sufficiently reliable for our purposes.

To describe DOD corrections facilities in the United States and factors to
consider in the event that they were to hold Guantánamo Bay detainees,
we focused the scope of our review on DOD’s Level II and Level III
facilities. DOD has two Level II regional corrections facilities and three
Level II consolidated brigs used for pretrial confinement and for inmates
with sentences ranging from 1 to 5 years, and one Level III facility used
for inmates with sentences from 5 years to life, and inmates sentenced to
death. We excluded DOD’s Level I facilities, because they are not
intended for confinement of individuals for more than 1 year. We reviewed
relevant laws such as the Detainee Treatment Act, the Military
Commissions Act, and the Uniform Code of Military Justice; and DOD
documents that govern its corrections operations and facilities, such as
DOD directives on the administration of military corrections facilities and
Army and Navy corrections manuals and regulations. In order to
determine overall capacity levels in DOD Level II and Level III corrections
facilities, we obtained and analyzed facility capacity data from the Army
and the Navy. We conducted a data-reliability analysis of these data by
obtaining information from DOD officials on how the data are collected
and used, and what internal controls the data are subject to. We
determined that they were sufficiently reliable for our purposes. In
addition, we conducted site visits to the Naval Consolidated Brig
Chesapeake, Virginia (Level II); the Midwest Joint Regional Correctional
Facility, Ft. Leavenworth, Kansas (Level II); and the United States
Disciplinary Barracks, Ft. Leavenworth, Kansas (Level III). We
interviewed officials and observed operations at these facilities. We
selected these facilities because they represent both Level II and Level III
facility operations; both Army and Navy operating procedures; and
because they reflect a range of housing configurations—including both
segregated and general-population housing units. In addition, we
interviewed officials responsible for the management of DOD corrections
facilities, including officials from the Office of the Secretary of Defense,
Joint Staff, Army Corrections Command, and Bureau of Naval Personnel.



Page 52                                     GAO-13-31 Guantánamo Bay Detainees
Appendix I: Scope and Methodology




To identify factors for consideration if the Guantánamo Bay detainees
were transferred to DOD facilities in the United States, we reviewed
analyses from 2009 conducted by DOD to determine whether its facilities
were equipped to conduct Guantánamo Bay detainee operations. We
also interviewed an official that worked on these analyses to identify what
factors and facilities may have changed since 2009. Because these
analyses were based on the assumption that all detention operations—
including intelligence operations and military commission support—would
remain the same, we maintained this assumption in our description of
factors requiring consideration in the event that Guantánamo Bay
detainees were moved to DOD facilities in the United States. Therefore,
using this assumption as our framework, we identified challenges DOD
might face in conforming to all relevant U.S. laws and policies,
international laws, as well as DOD corrections policies and operating
procedures if Guantánamo Bay detainees were transferred to DOD
facilities. We also identified operational challenges that DOD might face in
moving its detention operations as they currently exist to the United
States. Factors we describe in this section provide a summary of several
key issues DOD may need to consider, and is not intended to be an all-
inclusive list. Additionally, we are issuing a classified version of this
report. That version includes an additional appendix that provides a
discussion of Guantánamo Bay facilities used for classified operations
that would need to be considered if the detainees were transferred to
facilities in the United States.

To describe Department of Justice (DOJ) corrections facilities in the
United States we reviewed relevant laws and policies, such as federal
laws and regulations governing detention pending trial in federal court,
imprisonment of federal offenders, and BOP management and
operations; BOP and Marshals Service policies, such as the BOP policies
on inmate classification and management and a Marshals Service
directive on prisoner detention and housing. We also interviewed officials
from BOP, the Marshals Service, and the Office of the Deputy Attorney
General. We conducted site visits to and interviewed officials at four BOP
facilities including: U.S. Penitentiary, Leavenworth, Kansas; U.S.
Penitentiary, Lewisburg, Pennsylvania; Federal Correctional Complex,
Florence, Colorado; and Federal Correctional Complex, Allenwood,
Pennsylvania. We selected these facilities because they provide
examples of various types of housing units and security levels, including
segregated and general-population housing units. In order to determine
overall capacity levels in DOJ facilities, we obtained and analyzed facility
capacity data from BOP and the Marshals Service. To assess the
reliability of the BOP and Marshals Service data on facility capacity, we


Page 53                                     GAO-13-31 Guantánamo Bay Detainees
Appendix I: Scope and Methodology




reviewed agency documentation, received a demonstration of BOP’s
facility database, and interviewed BOP and Marshals Service officials. We
determined that the data were sufficiently reliable for our purposes.

To describe the number and locations of inmates in BOP and Marshals
Service custody charged with or convicted of terrorism-related crimes, we
obtained inmate data from both agencies. Both BOP and the Marshals
Service determined the criteria for inmates identified as charged with or
convicted of terrorism-related crimes. BOP identified these inmates by
including offenders who have been charged with or convicted of either a
terrorism offense, such as receiving terrorist training, or an offense with a
documented connection to terrorism, such as using the proceeds of
criminal activity to support a terrorist group. In addition, regardless of the
nature of the offense, BOP included inmates who are engaged in, or are
under investigation for engaging in, radicalization and recruitment
activities. BOP described the group of inmates for which they provided
data as inmates with a history of or nexus (connection) to terrorism. While
the Marshals Service does not classify individuals in its custody as having
terrorism-related charges, it used other sources, including media reports
and the nature of the pending charges, to identify individuals in its
custody who might be considered to have such charges. To describe
factors that would need to be considered if Guantánamo Bay detainees
were transferred to DOJ facilities in the United States, we assumed that
operations or conditions of confinement at facilities used by BOP or the
Marshals Service may be the same as those as currently at Guantánamo
Bay. While it is likely that conditions of confinement and related
procedures for the detainees would change if they were moved into DOJ
facilities, it is unclear what changes would occur. Thus, for the purposes
of this report, when discussing factors for consideration if the detainees
were moved to DOJ facilities, we assumed that most conditions and
procedures would remain the same. Therefore, using this assumption as
our framework, we identified challenges DOJ might face in conforming to
relevant U.S. laws and policies, as well as DOJ corrections policies and
operating procedures if Guantánamo Bay detainees were transferred to
DOJ facilities. We also identified operational challenges that DOJ might
face in providing the same scope and level of detention operations at its
facilities in the United States as DOD provides at Guantánamo Bay.
Factors we describe in this section provide a summary of several key
issues DOJ may need to consider, and is not intended to be an all-
inclusive list.




Page 54                                      GAO-13-31 Guantánamo Bay Detainees
Appendix I: Scope and Methodology




We conducted this performance audit from January 2012 to November
2012 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit to
obtain sufficient, appropriate evidence to provide a reasonable basis for
our findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our findings
and conclusions based on our audit objectives.




Page 55                                   GAO-13-31 Guantánamo Bay Detainees
Appendix II: Summary of Key Legislation   Appendix II: Summary of Key Legislation
                                          Affecting the Potential to Transfer
                                          Guantánamo Bay Detainees to the United

Affecting the Potential to Transfer Guantánamo
                                          States




Bay Detainees to the United States
                                          In addition to legal issues pertaining to the authority of civilian agencies to
                                          conduct military detention operations, since Executive Order 13492 was
                                          signed in January 2009, a number of statutes have limited or prohibited
                                          the transfer of Guantánamo Bay detainees to U.S. facilities.

Legislation                              Date enacted                      Effect on transfer of detainees
Supplemental Appropriations Act, 2009    June 24, 2009                    Prohibits the use of federal funds to transfer Guantánamo Bay
Pub. L. No. 111-32 (2009)                                                 detainees into the United States, except for prosecution or
                                                                          detention during legal proceedings, and requires the President to
                                                                          report this transfer to Congress 45 days in advance and provide
                                                                          detailed plans regarding potential risks and mitigation strategies.
National Defense Authorization Act for   October 28, 2009                 During the specified period, prohibits the use of funds made
Fiscal Year 2010                                                          available to Department of Defense (DOD) to release detainees
Pub. L. No. 111-84 (2009)                                                 into the United States, and limits the authority of DOD to transfer
                                                                          detainees to the United States until after the President submits a
                                                                          comprehensive plan including, for example, potential risks, costs,
                                                                          and mitigation strategies for each detainee to be transferred.
Consolidated Appropriations Act, 2010    December 16, 2009                Prohibits the use of federal funds to transfer Guantánamo Bay
Pub. L. No. 111-117(2009)                                                 detainees into the United States, except for prosecution or
                                                                          detention during legal proceedings, and requires the President to
                                                                          report this transfer to Congress 45 days in advance and provide
                                                                          detailed plans regarding potential risks and mitigation strategies.
Ike Skelton National Defense             January 7, 2011                  Prohibits the use of funds authorized for fiscal year 2011 to
Authorization Act for Fiscal Year 2011                                    transfer Guantánamo Bay detainees to the United States. Prohibits
Pub. L. No. 111-383 (2011)                                                the use of funds to construct or modify facilities in the United
                                                                          States for the purpose of detaining or imprisoning detainees under
                                                                          DOD control.
Department of Defense and Full-Year      April 15, 2011                   Prohibits the use of federal funds to transfer or assist in the
Continuing Appropriations Act, 2011                                       transfer of Guantánamo Bay detainees into the United States,
Pub. L. No. 112-10 (2011)                                                 unless the detainee is a U.S. citizen or a member of the U.S.
                                                                          Armed Forces.
Consolidated and Further Continuing      November 18, 2011                Both laws prohibit the use of federal funds to transfer or assist in
Appropriations Act, 2012 and             and December 23,                 the transfer of Guantánamo Bay detainees into the United States,
Consolidated Appropriations Act, 2012    2011                             unless the detainee is a U.S. citizen or a member of the U.S.
Pub. L. No. 112-55 (2011) and Pub. L.                                     Armed Forces.
No. 112-74 (2011).
National Defense Authorization Act for   December 31, 2011                Prohibits the use of funds authorized for fiscal year 2012 to
Fiscal Year 2012                                                          transfer Guantánamo Bay detainees to the United States. Prohibits
Pub. L. No. 112-81(2011)                                                  the use of funds to construct or modify facilities in the United
                                                                          States for the purpose of detaining or imprisoning detainees under
                                                                          DOD control.
                                          Source: GAO analysis of relevant laws.




                                          Page 56                                                       GAO-13-31 Guantánamo Bay Detainees
Appendix III: Noninteractive Timeline of
               Appendix III: Noninteractive Timeline of
               Guantánamo Bay Detention Operations



Guantánamo Bay Detention Operations




               Page 57                                    GAO-13-31 Guantánamo Bay Detainees
Appendix III: Noninteractive Timeline of
Guantánamo Bay Detention Operations




Page 58                                    GAO-13-31 Guantánamo Bay Detainees
Appendix III: Noninteractive Timeline of
Guantánamo Bay Detention Operations




Page 59                                    GAO-13-31 Guantánamo Bay Detainees
Appendix III: Noninteractive Timeline of
Guantánamo Bay Detention Operations




Page 60                                    GAO-13-31 Guantánamo Bay Detainees
Appendix IV: Comments from the
                            Appendix IV: Comments from the Department
                            of Justice



Department of Justice


Note: Page numbers in
the draft may differ from
those in this report.




                            Page 61                                     GAO-13-31 Guantánamo Bay Detainees
Appendix IV: Comments from the Department
of Justice




Page 62                                     GAO-13-31 Guantánamo Bay Detainees
Appendix V: GAO Contacts and Staff
                  Appendix V: GAO Contacts and Staff
                  Acknowledgments



Acknowledgments

                  Brian J. Lepore, (202) 512-4523 or LeporeB@gao.gov
GAO Contacts
                  David C. Maurer, (202) 512-9627 or MaurerD@gao.gov


                  In addition to the contacts named above, Alissa Czyz (Assistant Director),
Staff             Edward J. George, Jr. (Assistant Director), Carla Brown, Jennifer Bryant,
Acknowledgments   Frances Cook, Michele Fejfar, Gregory Marchand, Tida Reveley,
                  Kelly Rubin, Jennifer Spence, Amie Steele, Cheryl Weissman, and
                  Yee Wong made significant contributions to this report.




(351696)
                  Page 63                                    GAO-13-31 Guantánamo Bay Detainees
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