HSNW conversation with Shayana KadidalLegal expert: NDAA does not comply with Constitution

Shayana Kadidal // Source: Center for Constitutional RIghts

Homeland Security NewsWire: In relation to the detainees currently held at Guantanamo Bay, what are the legal consequences of the controversial National Defense Authorization Act (NDAA) that President Obama recently signed into law?

Shayana Kadidal: The transfer restrictions are the most significant provisions from the standpoint of the detainee litigation. (In my view, the “renewed AUMF” [Authorization for Use of Military Force] provision really does little to alter the current landscape as established by the Court of Appeals.) Similar provisions were put into place by the 2011 NDAA, and since those restrictions went into effect, on 7 Jan 2011, not a single detainee has been transferred out of Guantanamo – the longest period of time in the ten-year history of the prison without a transfer. (Yes, even in 2002 and 2003, President Bush transferred detainees out more frequently than President Obama has over the last year.) The new provisions are similar but with one important exception built in.

Both the 2011 and 2012 NDAA provisions mandate that the Defense Secretary certify that a foreign country that has agreed to receive a Guantanamo detainee has taken steps that will “ensure that the individual cannot engage or reengage in any terrorist activity.” Of course, no one can “ensure” that in the future some person will not do any particular thing—it’s a metaphysical impossibility to know that with certainty, and as a result, both Gates and Panetta refused and will continue to refuse to make such certifications, no matter how strict the restrictions on travel and police supervision a receiving country puts in place for released detainees. It is thus understandable that no one has been transferred since the 2011 provision became law (the last transfer out from Guantanamo took place two days before, on 5 January 2011).

However, the new law contains a “waiver” provision:  if the Secretary is able to certify that the receiving country has taken steps to “substantially mitigate the risk” of harm to the United States, and determines that such a transfer is in the overall best “national security interests of the United States,” then the transfer can go forward.

This “substantially mitigate” and “national security interests” test is, we understand, the same test applied for years by the Bush administration, and allowed 600 detainees to be sent home after they were cleared for transfer by the Defense Department. The current review process – the one implemented by the Guantanamo Review Task Force