The National Defense Authorization Act (NDAA) continues to contain extraordinarily dangerous principles. It creates a presumption in favor of indefinite military detention for foreign al-Qaeda suspects, even if a criminal arrest and prosecution would be the preferred course. And it imposes this presumption even for foreigners caught within the United States. While the law permits the president to waive that, the presumption is still wrong: given its inconsistency with basic principles of due process, indefinite military custody should be the last, not the first resort.
…
Equally problematic, the law puts Congress’s stamp on a dubious—and untested—interpretation of military detention authority. The law provides that indefinite detention without charge may be imposed on anyone who has provided “substantial support” to groups that are “associated forces” of al-Qaeda; but it leaves undefined what constitutes “substantial support” and which groups might qualify as “associated forces.”
…
Most disturbingly, the law still effectively prevents President Obama from closing Guantanamo. He can’t use any funds to build or modify a facility in the United States to house Guantanamo detainees—a necessary precondition to closing the prison. He cannot transfer any Guantanamo detainee to the United States, even to face criminal trial. And he cannot release any detainee to another country without meeting onerous certification requirements regarding that country’s security measures that, until now, have proven impossible to meet. The military has determined, after careful review of all the remaining detainees at Guantanamo, that more than half of them don’t need to be there. They have been cleared for release.
…
More here.