The Newest Iteration of the GTMO Transfer Ban: Absent Court Order, No Transfer to State Where There Has Been Any "Recidivism"

The shape of the pending GTMO transfer ban has morphed yet again.  Again Adam Serwer has the update.  The long and short of it is that the pending National Defense Authorization Act for Fiscal Year 2011 (NDAA FY11) apparently now provides that, barring a court order, the administration will be barred from transferring a GTMO detainee anywhere if even one earlier GTMO detainee was transferred to that person's country of origin and then went on to be involved in terrorism. This is unwise.  Let's say for the sake of argument that the government has an Afghan detainee at GTMO, someone who was in fact a Taliban fighter and whose detention accordingly would likely be upheld in the face of a habeas challenge.  The government would not be able to transfer such a person back to Afghanistan (for release, for custody in the Afghan national detention facility to which captured insurgents routinely are sent, or for release or custody anywhere else in the entire world for that matter) even if the best judgment of the intelligence community is that it serves no purpose to continue to detain that person.   Why in the world, as a policy matter, would one want to tie the President's hands in this way?