Constitutional attorney: Guantanamo ‘nearly impossible to close’ thanks to NDAA

By Stephen C. Webster
Tuesday, January 3, 2012 9:35 EDT
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A protester in an orange military prison uniform and sensory-deprivation bag over his head, demonstrating in Washington, D.C. on Dec. 5, 2007 against the Guantanamo Bay prison in Cuba. Photo: Flickr user takomabibelot.
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The U.S. military prison at Guantanamo Bay, Cuba will not be closing any time soon thanks to President Barack Obama’s approval of the National Defense Authorization Act (NDAA), a constitutional attorney who’s represented terrorism suspects told Raw Story this week in an exclusive interview.

Even though President Barack Obama made closing Guantanamo one of his core campaign promises in the lead-up to the presidential election in 2008, that promise now appears to be “nearly impossible” to fulfill thanks to provisions in the new laws, Baher Azmy, legal director of the Center for Constitutional Rights, explained.

As an attorney, Azmy represented Murat Kurnaz, a German who was detained by Pakistani authorities and sold to the U.S. for a bounty. Kurnaz, who even the Federal Bureau of Investigation (FBI) thought was innocent, ended up in Guantanamo at age 19 as a suspected terrorist, and he stayed there for five years without ever facing a criminal charge. Azmy also wrote briefings for the Supreme Court in Boumediene v. Bush, a case which challenged the right of the U.S. military to exclusively detain terrorism suspects.

“It has no real geographical limitation, it has no temporal limitation,” he said, summarizing key provisions in the NDAA. “It basically puts into law, into permanent law, the ability to indefinitely detain, outside of a constitutional justice system, individuals the president picks up anywhere in the world that the president thinks might have some connection to terrorism. The United States Congress, with the support of the president, has now put into law the possibility of indefinite detention, where the entire world, including the United States, is a battlefield.”

But more than just giving the presidency more power to imprison terror suspects, the NDAA also strikes at Obama’s promise to close Guantanamo by limiting the executive’s authority to transfer prisoners.

“[There are] really dangerous provisions here that would make it nearly impossible to close Guantanamo,” Azmy explained. “Congress has forbidden from transfering or releasing any detainees from Guantanamo to their home countries or third countries willing to take them as refugees unless the Defense Department can meet this exceedingly onerous certification requirement. Basically, before anyone can be released, the Defense Department has to certify that the individual will not engage in any hostile acts when they are returned — something that the Defense Department cannot certify, which is why the FBI and [Defense Secretary] Leon Panetta vigorously opposed these provisions.

“The effect of that will make it virtually impossible to move people out of Guantanamo. Congress is basically shutting all of the detainees in.”

Azmy added that while Obama did add a signing statement which promises not to indefinitely detain without charge any American citizen, nothing in the law would “prevent President Romney from doing precisely the opposite.”

“This legislation puts into law, into a legal architecture, authority for the president to do things that no president has ever been authorized to do before. It’s a scary day for civil liberties if we depend on the graces of the executive not to use power the Congress has given them.”

Photo: Flickr user takomabibelot.

Stephen C. Webster
Stephen C. Webster
Stephen C. Webster is the senior editor of Raw Story, and is based out of Austin, Texas. He previously worked as the associate editor of The Lone Star Iconoclast in Crawford, Texas, where he covered state politics and the peace movement’s resurgence at the start of the Iraq war. Webster has also contributed to publications such as True/Slant, Austin Monthly, The Dallas Business Journal, The Dallas Morning News, Fort Worth Weekly, The News Connection and others. Follow him on Twitter at @StephenCWebster.
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