Someone inserted the ban on federal funds for the use of federal trials for Gitmo detainees, this time into the National Defense Authorization Act which the House is meant to vote on soon. The Senate was apparently going to pass the DADT-repeal free NDAA by unanimous consent, but Republicans might try to force a debate as part of their strategy to "run out the clock."
But this time, the ban is actually more aggressive and more directly aimed not just at preventing terrorists from being tried in civilian court but on closing Gitmo at all. The ban now includes a prohibition on using federal funds not just for trials, but to transfer detainees to any country in which there is a confirmed case of recidivism. Here's the language:
(1) PROHIBITION- Except as provided in paragraph (3), during the one-year period beginning on the date of the enactment of this Act, the Secretary of Defense may not use any amount authorized to be appropriated or otherwise made available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or effective control of the individual's country of origin, any other foreign country, or any other foreign entity if there is a confirmed case of any individual who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, who was transferred to the foreign country or entity and subsequently engaged in any terrorist activity.
(2) WAIVER- The Secretary of Defense may waive the prohibition in paragraph (1) if the Secretary determines that such a transfer is in the national security interests of the United States and includes, as part of the certification described in subsection (b) relating to such transfer, the determination of the Secretary under this paragraph.
(3) EXCEPTION- Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction. The Secretary shall notify Congress promptly upon issuance of any such order.
The exception means that the prohibition doesn't have the sharpest teeth -- but what it means is that the secretary of defense has to take personal responsibility for transferring anyone. I'm also not entirely sure how this is legal, since it would presumably apply to those detainees who have been ordered released by federal courts because they won their habeas cases. Think about that; even if a judge has determined the government has no basis for holding you, you still can't be released if someone transferred to your home country is suspected of engaging in terrorist activity after being detained at Gitmo. That's so blatantly unfair and lawless I don't even know where to start.
Again, this is a Democratic Congress doing this. It's possible that the administration doesn't want to try any more Gitmo detainees in civilian court, and this would preempt a fight with Republicans over the issue for at least the next year. But it compounds the difficulty of closing Gitmo by prohibiting transfers based on overblown fears of recidivism.
UPDATE: A reader helpfully points out that paragraph three does contain an exception for habeas cases, which I misread in my haste.