It’s almost summer, so that means that the United States Senate and House of Representatives will take up—again—more legislation related to the terrorist detention facility at Guantanamo Bay (Gitmo), Cuba.
Gitmo legislation has been a favorite political football for both parties, regardless of which party is in the majority. And this year is no different.
I want to focus on one controversial amendment: Section 1023 of the National Defense Authorization Act titled “Designing and Planning Related to Construction of Certain Facilities in the United States.”
At first blush, it looks like the amendment breaks the legislative logjam, starting back in 2009 and enacted into law every year since, that prohibits the expenditure of federal funds for the construction, acquisition, or modification of a facility in the United States for the purpose of housing Gitmo detainees.
But it does no such thing.
First, some history. Since 2006, the Pentagon has been studying various sites inside the United States where Gitmo detainees could be safely detained as law of war detainees.
President George W. Bush, in 2006, said that he would like to move to the day when the detention facility at Gitmo was closed. And although over 500 Gitmo detainees were transferred or released from the island compound during his presidency, Bush never ordered the facility to be closed.
President Barack Obama signed an executive order in his first week in office in 2009, directing the facility to be closed within a year. He failed to do so, in large part because he was not willing to spend the political capital necessary to do so, as I explained in detail here.
Recall that the Democrats were in the majority in the House and Senate in 2009 and 2010. But instead of forcing its closure with his own party, he spent his early political capital on the TARP, the stimulus, and on the controversial Obamacare.
Nevertheless, the process of surveying possible sites in the United States continued, and indeed intensified.
Department of Defense experts, and others from other federal agencies, conducted site surveys in several states up until two years ago. Approximately two years ago, however, Department of Defense lawyers interpreted new congressional restrictions on the expenditure of funds to forbid site surveys.
In other words, the last site surveys of possible locations in the United States are over two years old.
Section 1023 simply allows Department of Defense to expend funds for “designing and planning related to construction or modification of such facilities.”
Section 1023 does not repeal or modify the other provisions related to the use of funds for the construction or modification of facilities in the United States, nor does it affect the legislative bar on expending funds to bring Gitmo detainees to the United States.
It simply allows them to use appropriated funds to start the planning and designing phase.
To some, this is a crack in the legislative dam, and is a dangerous slippery slope on the way to closing the facility and importing Gitmo detainees into the United States.
Sen. Jerry Moran, R-Kan., filed Section 4068 to strike Section 1023. He also filed Section 4069 strengthening the obligations on the administration to certify the transfer or release of Gitmo detainees from Gitmo.
There is no way of knowing, at this point, whether Section 1023 will pass.
If it makes it through the House/Senate conference, and is signed into law, we should know very soon which facility or facilities the administration has their eye on in the United States, as activity around those places will increase in the public eye.
Charles “Cully” Stimson is a leading expert in national security, homeland security, crime control, immigration and drug policy at The Heritage Foundation’s Center for Legal and Judicial Studies and the Center for National Defense.
Editor's Note: This piece was originally published by The Daily Signal.