Both Jack Goldsmith and Harold Koh have recently written about the constitutionality of congressional restrictions on the transfer of prisoners. The President’s veto last week of the NDAA was based in part on his objection to the restrictions it places on such transfers.
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A Weak Case For the Unconstitutionality of the Detainee Transfer Restrictions (and a Glance at the Bigger Picture)
I noted earlier this year that the administration might be building a foundation for a constitutional argument to disregard congressional transfer restrictions as a basis for closing GTMO. Last week Harold Koh used the President’s message in connection with his NDAA veto as an occasion to add to that foundation.