Why Congress Won’t Shut Down Guantanamo

Dianne Feinstein introduced a bill on Monday which would shut down Guantanamo. (Not clear whether it would also shut down the military commissions – the bill calls for release, detention as an enemy combatant, or prosecution before an Article II court or “military legal proceeding before a regularly-constituted court,” which of course the commissions are deemed by the MCA.) We have also seen bills (including the Restoring the Constitution Act of 2007) to reverse important elements of the Military Commissions Act. The Senate Armed Services Committee held hearings last week on the subject. So there has been some activity in the wake of the Democratic takeover in Congress to address detainee issues.

Why then the lack of confidence that anything will actually come out of this, at least not anytime soon? Leaving aside Marty Lederman’s argument that a Gitmo shut-down might not improve the situation (with a turn to Bagram and sites further off the legal radar screen), I still don’t think that Americans are very agitated about Guantanamo or detainee policy generally (in contrast to “domestic” anti-terrorism practices that have broader application to citizens). There’s not much pressure from constituents for action on this front. As recently as last summer, more than half of all Americans supported the continued operation of Guantanamo.

On top of that, there’s probably still some concern about a downside risk should anything go wrong down the road, in any way that might come back to haunt those who support these measures (a la Willie Horton, someone who gets sprung only to get involved in a subsequent high-profile terrorist activity). I don’t see Clinton or Obama signing on to these measures as cosponsors. So the political bottom line here points away from putting too much capital into restoring detainee rights, and towards hoping that the courts will fix things at no risk to legislators.