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
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