Legal expert: NDAA does not comply with Constitution

that President Obama set up on his second day in office – is far more rigorous than the Bush clearance process, involving unanimous consent by all relevant agencies – CIA, FBI, DIA/DOD, State, etc. – before a detainee is approved for transfer. Eighty-nine remaining detainees – the majority of the men left at Guantanamo – were approved for release by the Task Force.

We had lobbied to have the certification turn on the “substantially mitigate” and “national security interests” test rather than on the ludicrous “ensure that the individual cannot engage or reengage in any terrorist activity,” simply because it seemed more realistic. But it is worth noting that, politically, it will be much more difficult for any president to issue eighty-nine individual “waivers” of a standard put in place by congress than it would be to simply say that eighty-nine transfers met the official “certification” standard, simply because characterizing a release as based on a “waiver” makes the decision sound more discretionary, as if it were a pardon being issued.

The ultimate result of this provision, then, will be to increase the political cost to the president of taking any steps towards closing Guantanamo – a goal that he, John McCain, and President Bush supported during the last election because they all acknowledged that doing so was in the overall best national security interests of our country.

HSNW: In signing the NDAA, Obama expressed deep reservations about certain provisions, but guaranteed that the bill complied “with the Constitution, the laws of war, and all other applicable law.” From a legal standpoint is that statement correct?

SK: No. For starters, the notion that anyone who is “part of” a group “associated with” al Qaeda is detainable is so open-ended that no responsible judge would ever hold that it was consistent with the law of war.

HSNW:Has the NDAA made shutting down Guantanamo Bay, a pledge President Obama made three years ago, an even more difficult task?

SK: Yes, for the reasons I spelled out above, but I should add that I think it is wrong to assume that President Obama today feels the same way that candidates Obama and McCain both did three years ago. I believe that on almost every national security issue, the president and his advisors have decided that there is nothing to be gained from changing Bush administration practices. In their view, the last ten years are seen by the American public