Chapter 5 Towards the Closure of Guantanamo: International Legal Obligations | 123 with regard to the Transfer or Release of Detainees closed but this must be done in accordance with international law and in full respect of the detainees’ human rights. 4. Executive prerogative powers 302. United States authorities often name Congress and the National Defense Authorization Act (NDAA) as the reasons why Guantanamo remains open. While, as seen above, it is a fact that Congressional restrictions have been an obstacle to the transfer of prisoners, the NDAA has always granted the State the authority necessary to transfer prisoners. 303. Even under the more onerous certification requirements previously imposed by the NDAA, the Executive had the ability to issue case-by-case waivers, a power that the administration never used. The Secretary of Defense could use the national security waiver established in the NDAA and certify the transfer of a prisoner if he were satisfied that the bilateral agreement with the receiving country addressed the U.S. security concerns. The NDAA also permitted the Secretary of Defense to certify a prisoner for release if it were in the national security interest to do so. The U.S. administration also lost the unique opportunity to transfer the 126 prisoners cleared by the interagency task force in 2009 before the Congress restrictions entered into force. About half were not transferred before the NDAA for fiscal year 2011, in part due to the Presidential moratorium on transfers to Yemen. 304. The NDAA for fiscal year 2014 eliminated the certification requirements imposed in 2011. Under existing legislation, it is sufficient that the Secretary of Defense determines, considering a number of factors, that action has been taken or will be taken to mitigate the risk of a detainee reengaging in terrorist activity and the transfer is in the national security interests of the United States. Therefore, the Executive has the authority to finalize the transfer of prisoners. 305. Since the loosening of transfer restrictions, the United States has transferred 11 detainees in 2013 and 23 in 2014. This is an improvement over previous years; however, in order to promptly close Guantanamo, transfers should be accelerated. Although it would be desirable that Congress repeals the current restrictions, this could be done under the existing legislation if the Executive explores all potential avenues. This includes interpreting in a flexible manner the requirements imposed by the NDAA 368 and accelerating the Pentagon approval process. 368 See in this regard, Human Rights First, Guantanamo: A Comprehensive Exit Strategy, Annex B: Working within the Current Guantanamo Transfer Restrictions. Available at: http://www.humanrightsfirst.org/uploads/pdfs/close-GTMO-july-2013.pdf Inter-American Commission on Human Rights | IACHR