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Published by The Lawfare Institute
The US government is considering transferring a group of five Taliban detainees from GTMO to Qatar (to be held there by Qatari authorities) in furtherance of peace negotiations in relation to Afghanistan. Of course, as we all know, Congress has passed all sorts of legislation making it difficult to release or transfer detainees from GTMO, including most notably in the NDAA for FY '12. So how can the government pull off a transfer in this situation? It works like this: First, ignore section 1027 of the NDAA. It flat prohibits the expenditure of any funds appropriated under the NDAA to move a detainee from GTMO to the United States. But t does not speak to transfers from GTMO to third countries such as Qatar. So we can set it aside. Focus, instead, on section 1028, which governs transfers from GTMO to third countries. It adopts a default rule that no GTMO detainee can be transferred to another country's custody, except pursuant to a handful of narrow exceptions: Certification from the Secretary of Defense: A transfer is permitted if the Secretary of Defense (after consulting with the DNI, and upon obtaining the concurrence of the Secretary of State) can send to Congress (30 days in advance of the transfer) a certification that the receiving state (i) is not a state sponsor of terrorism, (ii) has control over any detention facility in which the transferee may be housed, (iii) does not face a threat that is "likely to substantially affect its ability to exercise control over the individual," (iv) will take action to ensure the person cannot threat the US, its citizens, or our allies in the future, (v) will take action to ensure the person "cannot engage or reengage in any terrorist activity," and (vi) will share with the United States any information it has involving the person, associates of the person, or any other information that "could affect the security of the United States, its citizens, or its allies." All this must be supported, too, by a report discussing the capacities and past-practices of the receiving state. In addition, the certification mechanism is not available at all if, on any prior occasion, a detainee transferred to the country in question was able to engage in terrorist activity again. I'm not sure off the cuff whether we have had prior GTMO-to-Qatar transfers, so I'll assume the recidivism bar does not come into play here. In that case, the question is whether Panetta and Clinton can in good faith make the required certification. The first three criteria seem relatively easily satisfied in this case, but the last three may be problematic given how severely/absolutely they are framed. This is why, in general, the certification system is perceived as very difficult to employ. Certifications obviously could not be granted, in good faith, for Yemen. Qatar presents a much easier case than Yemen, but is it easy enough? It's a bit hard to say, and ultimately it really boils down to the willingness of the Administration (and those two cabinet officers in particular) to expose themselves to repurcussions should they go forward with a certification in circumstances that end up turning out bad. That's a tough predictive judgment in this particular case. But this isn't the end of the analysis. Court Order: No certification is required if an American court orders the release. So if these guys pursued and won a habeas action, they could be transferred. They have not, however, so we can ignore this alternative. Pre-Trial Agreements in Military Commission Cases: No certification is required for transfers pursuant to pre-trial agreements in military commission cases (so long as pre-dating the NDAA). Again, not applicable here so far as I am aware. National Security Waiver: As it turns out, the NDAA provides a waiver system for some (but not all) of the strict certification conditions mentioned above (as well as the recidivism bar mentioned above). In brief, if the Secretary of Defense (again with SecState concurrence, and DNI consultation) determines that a transfer is in the "national security interests of the United States"--for example, because it might facilitate an end to the Taliban's insurgency--then two of the certification conditions (numbers (iv) and (v) above) may be loosened. Instead of having to certify that the receiving state will act to ensure that there will be no recidivism, it will be enough to assert that it simply isn't possible to make such promises and that efforts nonetheless will be made to substantially mitigate recidivism risks. That of course is far more realistic, and one assumes that it is precisely what will be asserted should we ultimately transfer these fellows to Qatar. But there is still one catch. The national security waiver does not alter condition (vi) above, which calls for a seemingly-unlikely degree of information sharing (well beyond the circumstances of the detainee in question) from the receiving state. If construed very literally, it is hard to see how that certification could ever be satisfied, even as to close allies. On that point, then, I think Panetta and Clinton simply have to hold their nose, cross their fingers, and move forward with the certification, premised on an implicit understanding that it just cannot be read too literally (and perhaps trusting as well that it will not be very easy to show in a concrete way if and when Qatar is not actually sharing information as contemplated by that certification condition).
Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.
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