In the last six weeks, since the Senate passed the National Defense Authorization Act of 2012 (PDF) and President Obama signed it into law, there has been considerable discussion and outrage about the provision requiring the mandatory military custody, potentially indefinitely, without charge or trial of anyone having an alleged association with al-Qaeda.
While it is important that criticism should continue to be directed at lawmakers for these unacceptable provisions, few critics of the NDAA have noted that another provision of the law provides hope for finally transferring prisoners out of Guantánamo. Over half of the prisoners there - 89 of the 171 remaining prisoners - have been cleared for release for more than two years, but prevented from being transferred out of Guantánamo by prior congressional restrictions.
This important provision is discussed below by Tom Wilner, Counsel of Record for the Guantánamo prisoners in their cases before the Supreme Court in 2004 and 2008, and a member of the steering committee of "Close Guantánamo."
The recently enacted National Defense Authorization Act of 2012 (the "NDAA") does a number things that seriously threaten civil liberties. In one area, however, the NDAA significantly eases current restrictions. It gives the Obama Administration both the legal authority and the practical ability to transfer detainees from Guantánamo back to their home countries.
Prior law put significant hurdles in the way of transferring detainees from Guantánamo. It effectively blocked the transfer of any detainee who was not ordered released by a court or released pursuant to a prior plea agreement in a military commission case. Other than in those circumstances, the law prevented a detainee from being transferred (i) to any country if any detainee had previously been transferred to that country and had subsequently engaged in any terrorist activity (a "recidivist country") or (ii) to any other country unless the Secretary of Defense issued a certification personally "ensur[ing] that the individual [transferred] cannot engage or reengage in any terrorist activity." The general counsel of the Department of Defense had ruled that it was simply not possible for anyone to provide such a personal blanket assurance. As a result of these restrictions, no detainee has been transferred from Guantánamo since these laws were enacted except pursuant to a court order or a plea agreement.
Section 1028 of the NDAA changed the law and eased the transfer requirements. Although that section of the new law retains essentially the same certification requirements mentioned above, it now explicitly allows the Secretary of Defense in consultation with the Secretary of State to waive those requirements by finding:
[if] it is not possible to certify that the risks ... have been completely eliminated, [that] the actions to be taken ... will substantially mitigate such risks with regard to the individual to be transferred; [and, in the case of the recidivism provision,] the Secretary has considered any confirmed case in which an individual who was transferred to the country subsequently engaged in terrorist activity, and the actions to be taken ... will substantially mitigate the risk of recidivism with regard to the individual to be transferred and [that] ... the transfer is in the national security interests of the United States.
Those waiver provisions clearly give the Administration both the legal authority and the practical ability to transfer detainees from Guantánamo to their home countries. The question is no longer whether the Administration has the authority to transfer detainees home but whether it has the political courage to do so.
Note: If you have not already done so, please sign the petition on the White House's "We the People" website calling for President Obama to fulfill his promise to close Guantánamo.