How National Defense Authorization Act Allows President To Release Prisoners From Guantánamo – OpEd

While I was in the US two weeks ago, for the 10th anniversary of the opening of the “war on terror” prison at Guantánamo Bay, there was great deal of understandable outrage amongst activists — both those on the left, and libertarians — because of outrageous provisions in the National Defense Authorization Act of 2012 (PDF), which was passed by the Senate on December 15, and was signed into law by President Obama on December 31.

I discussed these provisions in a number of articles — most recently in an article entitled, “A Tired Obsession with Military Detention Plagues American Politics” — in which I wrote about the shameful provisions requiring the mandatory military custody, without charge or trial, of anyone allegedly associated with al-Qaeda, and also wrote about the provisions preventing the release of prisoners from Guantánamo, which have stopped anyone being released in the last year.

In addressing concerns about the NDAA, I made a point of stressing that, although it is important that criticism should continue to be directed at lawmakers for subverting the entire basis of America’s foundation as a country based on the rule of law with their military detention provisions (for which they should all be hounded out of office), and although it is also of significance that the restrictions on releasing Guantánamo prisoners are based on fearmongering for nakedly political reasons, two other details should not be overlooked.

The first is that, in all of the discussions about the mandatory military detention provisions in the NDAA, in which there was great anxiety that the provisions would apply to US citizens, there was little mention of the fact that, without Guantánamo, there would have been no basis for lawmakers to indulge their dangerously unconstitutional desires, and that those opposed to the provisions should therefore also direct their energies to the closure of Guantánamo.

The second reason, and one that the attorney Tom Wilner — Counsel of Record for the Guantánamo prisoners in their cases before the Supreme Court in 2004 and 2008 — was particularly concerned to explain while I was with him in Washington D.C. two weeks ago, is that another provision, inserted as a result of negotiations between the administration and Congress, explicitly allows the administration to release prisoners without Congressional approval. Below, I cross-post Tom’s important commentary about this, which was first published yesterday on the website of the “Close Guantánamo” campaign, for which we are both members of the steering committee.

It is, I believe, extremely important for this to be noted by those who wish to see Guantánamo closed, because it provides a possibility that has been otherwise overlooked, and a means whereby campaigners can legitimately push for prisoners to be released. After all, as the “Close Guantánamo” campaign notes in its mission statement (signed by retired military personnel, a retired judge, lawyers and journalists), over half of the prisoners — 89 of the 171 men still held — have been cleared for release for more than two years, since the President’s own Guantánamo Review Task Force issued its recommendations about the disposition of the remaining prisoners, and some were first cleared for release under President Bush as long as as 2004. The campaign is also stressing that over half the prisoners have been cleared for release in a petition on the White House’s “We the People” website calling for President Obama to honor his promise to close the prison, for which 25,000 signatures are needed by February 6, to secure a response.

Please read Tom’s analysis below, and then let’s start mobilizing for the release of these 89 men who have effectively spent the last two years as political prisoners.

Legal Analysis — Section 1028, National Defense Authorization Act of 2012
By Tom Wilner, Close Guantánamo, January 25, 2012

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: For another take on this important waiver provision, see this letter from 15 retired admirals and generals to President Obama, urging him “to transfer Guantanamo detainees who have been cleared for release to their home or to third countries, an option that is available to him under new guidelines contained in the 2012 National Defense Authorization Act,” as Human Rights First explained in a press release to accompany the release of the letter.

In the letter, the retired admirals and generals state:

In the 2012 National Defense Authorization Act, Congress authorized new guidelines for transferring detainees out of Guantanamo. Under these guidelines, your administration can transfer detainees cleared for release to their home or to third countries if the Secretary of Defense issues a waiver in the interest of our national security demonstrating that measures will be taken to substantially mitigate the risk of transfer. We ask that you direct your administration to exercise this authority immediately and fully to demonstrate your good faith commitment to closing Guantanamo. Doing so is the first step among many needed to finally close this dark chapter in our history.