June 13, 2008

The Supreme Court ruled this week to extend access to the federal courts to detainees at Guantanamo Bay. When reporters asked John McCain for his reaction a few hours later, he struck a disappointed note, but seemed pretty level-headed about the case. “[I]t is a decision that the Supreme Court has made,” McCain said. “Now we need to move forward. As you know I always favored closing Guantanamo Bay and I still think we ought to do that.”

That McCain did not share the right’s apoplexy over the ruling was not especially surprising — his record is that of someone not entirely comfortable with the Bush administration’s detainee policy. Indeed, in 2003, McCain blasted the administration’s notion of indefinite detentions and publicly challenged the Pentagon (specifically, Rumsfeld) to resolve the matter by either processing the detainees as war criminals or returning them to their home countries for trials. Shortly thereafter, McCain added that the detainees “have rights under various human rights declarations,” one of which is “the right not to be detained indefinitely.”

The Bush administration ignored McCain’s advice, and the two-year detentions McCain was worried about have since become six- and seven-year detentions. It makes sense, then, that McCain struck a moderate tone yesterday.

Apparently, though, moderation didn’t poll well overnight. Yesterday, McCain quickly embraced the far-right line and denounced the ruling in the strongest of terms.

John McCain weighed in on the U.S. Supreme Court decision on the rights of Guantanamo Bay prisoners to challenge their detention in U.S. courts at a town hall meeting Friday, calling the 5-4 decision “one of the worst decisions in the history of this country.”

McCain said he that while he has been a vocal opponent of torture and advocated closing Guantanamo, he does not believe prisoners deserve the same rights as U.S. citizens.

“These are enemy combatants, these are people who are not citizens, they are not and never have been given the rights that the citizens of this country have,” he said. “Our first obligation is the safety and security of this nation and the men and women who defend it.”

Remember the good ol’ days? Before John McCain became a shameless hack? Good times, good times.

Boumediene is not “one of the worst decisions in the history of this country.” McCain must know this, but the ruling seems to be inspiring all kinds of right-wing hyperbole. Did you catch what Scalia wrote in his dissent?

“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. The Nation will live to regret what the Court has done today.”

For a less unhinged perspective, there are plenty of great analyses of the court’s ruling, but as always, I’m partial to Dahlia Lithwick’s take.

This raises the question of what Scalia would do with these prisoners, many of whom have been held for six years without charges. If they can’t reasonably be tried or released, it must be a great comfort to believe that they are all killers and terrorists, and no further proof is needed.

The claim that the majority handed Khalid Sheikh Mohammed and the others at Guantanamo the keys to the cells is absurd on its face. As Justice Kennedy is careful to point out in his majority opinion, the court is not ordering the release of any detainees; it is restoring their fundamental right to a habeas proceeding before a neutral fact-finder. The court did not get to the question of whether the president has authority to detain these petitioners. Nor did it actually grant anyone a writ. The majority did not strike down the MCA or find the military trials the Bush administration established to be unconstitutional. The court merely said that the petitioners are entitled to some reasonable approximation of a habeas corpus proceeding, and that the jumped-up pretrial hearings known as Combatant Status Review Tribunals just don’t substitute. Chief Justice John Roberts may insist that these tribunals represent everything a prisoner could ever wish for in the way of due process rights. But Justice Kennedy points out that the detainees’ lack of a real lawyer and their inability to rebut the charges against them make for a process that is, by definition, “closed and accusatorial” and thus open to “considerable risk of error.” (Not to mention that if a CSRT finds that you’re NOT an enemy combatant, they can just order a do-over!) Such error may result in a lifetime of detention. The majority isn’t persuaded the risk is worth it. Wrote Kennedy: “Given that the consequence of error may be detention of persons for the duration of hostilities that may last a generation or more, this is a risk too significant too ignore.”

And in the end, this is the fight between the majority and the dissent: Kennedy and the justices who signed his opinion (David Souter, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg) are worried about the very real risk of a lifetime of mistaken imprisonment. And the dissenters (Scalia, Roberts, Clarence Thomas, and Samuel Alito) are worried about the risk of … what? Not an actual mistaken release, but a day in court. The big threat here is of federal court review that may — somewhere far down the line, and at the moment entirely hypothetically — result in the release of a detainee or (more attenuated still) the disclosure of a piece of hypothetical information that could help the terrorists in their fight against us. […]

In the event that one of the prisoners who has suffered years of abuse and mistreatment at Guantanamo is someday actually released following a federal habeas proceeding and blows something up, Scalia wants to be able to point at Justice Kennedy as the man who let him go. Or if in the course of a someday trial, a piece of evidence is leaked that somehow strengthens a terrorist group, he can blame Kennedy for his blind faith in the federal courts. The dissenters here are unwilling to bear the risk that any of the 270 men at Guantanamo — among them people who were grabbed as teens and others who claim actual innocence — go free. And, indeed, reasonable people can disagree about whether that risk is too much to bear. But Scalia and his dissenting friends today made clear that this is not the risk to which they most object. What they cannot accept is the risk that their brothers and sisters on the federal bench — with decades of judicial experience and the Constitution to light their way — might now do what they are trained to do: hear cases.

That McCain would consider this “one of the worst decisions in the history of this country,” suggests he’s truly gone — and he’s not coming back.

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