Why Congress Won’t Shut Down Guantanamo

by Peter Spiro

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.


2 Responses

  1. Yes. A perfect analogy is the inability of Congress to pass a lynch law back in the day. Also, we should keep in mind that members of Congress (at least minority and majority leader in the relevant committees) were appraised of these programs in the closed door hearings so there is a history of acquiescence with this. I doubt that anything can move them. Need more pictures of what they have countenanced a la Abu Ghraib but even that does not appear a sure thing to move these consciences. As to Gitmo being kept open, Marty misses the point that the option is to bring the persons stateside as we did with POW’s in World War II and not just keep them out there. Further, Rasul did speak to the idea of being able to sue the Govt in DC for actions around the world – so the shell game can be done to run but the government can not hide.



  2. Even if we dissolve the GITMO detention and simply tried to send all the prisoners home, we’d have no success. Currently, most countries won’t accept their nationals back, even the ones we’ve cleared of crimes. Many of them cannot be deported back due to fear of torture or persection if they are repatriated.

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