Last week, Democrats in the House inexplicably passed a funding bill that would prohibit funds for the transfer of Gitmo detainees to the U.S. for trial. Attorney General Eric Holder harshly criticized the ban for tying the governments hands in its efforts to fight terrorism.
When the Senate folded the House bill into an omnibus spending bill, the Gitmo ban was still in place. But a Senate staffer confirms that also in place was language that states the ban is superceded by language in the National Defense Authorization Act, which does provide funds for trying Gitmo detainees in federal courts. That language has been in there since the NDAA was passed out of the Armed Services Committee months ago. Who added the new language is as much of a mystery as who put the ban in the original House bill in the first place.
Devon Chaffee, of Human Rights First, affirmed that “from what we’re seeing, and the language in the NDAA will allow for transfers for prosecution to continue.” Here's what the omnibus bill now says:
The prohibition under subsection (a) shall termi nate on the earlier of the date of the enactment of an Act authorizing appropriations for fiscal year 2011 for the Department of Defense that includes a provision regarding the release or transfer of detainees held at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense, or September 30, 2011.What that means is that, if the NDAA passes as currently written, the ban in both the House bill and the Senate omnibus is meaningless and that the administration will be not be prevented from trying Gitmo detainees in federal court for the next fiscal year if it wants to. Whether it wants to, in the aftermath of the Ahmed Ghailani verdict, is a different question.