Legal expert: NDAA does not comply with Constitution

as ten years without another major terrorist attack on U.S. soil. Changing anything that the Bush administration claimed to be doing to prevent another 9/11 will, in the event of another attack, be a point that the President’s political opponents can use to accuse him of being responsible.

That is why we’ve seen a complete absence of leadership on these issues – from detention to surveillance to targeted assassination – from the President, and the Democrats in Congress have simply followed suit given the absence of cover from the White House.

HSNW: What are the key legal challenges that must be addressed before detainees can be transferred out of Guantanamo?

SK: The NDAA transfer restrictions, yes, but also the situation in Yemen. Hardly anyone has been sent home to Yemen in the last decade – less than 15 percent of the Yemeni detainees ever held at Guantanamo have been sent home. In part that is because the U.S. government has never trusted the Yemeni government to be able to monitor detainees sent home, so even the waiver standard in the 2012 NDAA restrictions may be difficult to meet; on top of that, the President issued a “temporary” moratorium on transfers to Yemen after the Christmas 2009 incident where a man supposedly trained in Yemen tried to bomb an airliner headed to Detroit. And about fifty-eight of the eighty-nine cleared men are from Yemen.

Of course, one might expect the courts to intervene given that men cleared for release have been held now for two years plus since their clearance decisions were made. But the standards for winning one’s habeas case set by the intermediate court of appeals – the D.C. Circuit – are effectively impossible to meet. The Circuit has overturned every detainee victory that the government has chosen to appeal. And the Supreme Court has effectively conceded its role as court of last resort because of Justice Kagan’s appointment – she has recused herself from every detainee case involving the merits of the detention standard, since before her nomination she was a lawyer representing the government in cases dealing with detainee affairs.

HSNW: Given the sharp criticism from both sides of the aisle of President Obama’s plan to try some terror suspects in U.S. federal courts, in your opinion is it feasible to end the practice of military tribunals? What are the main legal or political hurdles that must be overcome before fair trials can occur?

SK: Right now it appears that any trials that take place for Guantanamo detainees will be before a military commission, not a federal criminal court. I don’t expect this to change in the near future, barring a ruling from the D.C. Circuit that conspiracy and material support are not war crimes triable by commission.

Fairness isn’t really the ultimate problem with military commissions. The rules have been slowly evolving to approach the standards used in domestic federal criminal courts. But we don’t hold criminal trials just to make sure that the guilty are convicted. We also hold them to project the impression that we are a nation ruled by laws, that we offer equal justice to all accused, regardless of religion or national origin. And any military commissions — especially these ones, derived from the ones President Bush created by fiat and being held at the world’s most infamous prison — will never be regarded as legitimate by the people of the Arab world, who this same administration is trying desperately to establish legitimacy with.

Shayana Kadidal is the senior managing attorney at the Center for Constitutional Rights