The Shutdown and the Guantánamo Transfer Restrictions

Although folks disagree over how big an obstacle it really is, one of the bigger political (if not legal) obstacles to transferring detainees out of Guantánamo (to other countries) is the series of transfer restrictions codified in each year’s National Defense Authorization Act (see, e.g., Bobby Chesney’s Lawfare primer.) But insofar as those restrictions are tied to the NDAA, the FY2013 NDAA expired (along with most other governmental appropriations) at midnight on Monday–and, unlike recent years (in which a Continuing Resolution has filled the gap), the shutdown itself is the result of the fact that no comparable bill for 2014 (or a CR) has been passed in the interim.

So here’s the million-dollar question: Aren’t the transfer restrictions no longer in force? There may be an argument that the recidivism provision (which is cast as an outright prohibition on transfers, as opposed to a limitation on the use of funds) applies regardless of the source of funds. But in cases in which it does not, isn’t there currently no legal limit on the government’s power to transfer detainees out of Guantánamo? 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).