David Remes on NDAA Transfer Provisions

From my standpoint as a Guantánamo habeas lawyer, the detainee transfer provisions of H.R. 2219 (§ 8124) and S. 1253 (§§ 1032, 1033) are irredeemably flawed, and for the vast majority of detainees, redundant. The provisions are irredeemably flawed because their very purpose is to make it impossible for the President to transfer detainees to third countries. Unless lightning strikes, any changes to these provisions will be purely cosmetic. The provisions are also redundant for the vast majority of detainees, because President Obama intended to transfer only 31 of the 171 detainees anyway. The 31 are non-Yemenis his Guantanamo Task Force approved for transfer. Though the Task Force approved 57 other detainees for transfer, they are Yemenis, and Obama has effectively ruled out transferring Yemenis. Why are the proponents so fixated on tying the President's hands with respect to 31 detainees? Obama obviously doesn't intend to transfer the 47 detainees his Task Force slated for indefinite detention, at least not unless and until they are approved for transfer by a new administrative review process he announced but has not yet put in place. Even a detainee who wins his habeas case in district court is out of luck. The D.C. Circuit has held (in Kiyemba III) that the district court can't compel the government to transfer detainees. The D.C. Circuit has also made abundantly clear that it won't allow detainees to prevail when the government appeals. Finally, S. 1253 (§ 1032(a)(2)) appears to foreclose the one other road to transfer: a plea bargain in a military commission proceeding that sets a date certain for the detainee’s transfer. This scenario was played out in the cases of three detainees, Qosi, Khadr, and Uthman. S. 1253 would bar repeats, The transfer prospects of Guantánamo detainees—even those the Executive has approved for transfer and is prepared to transfer—have never looked so bleak.