McCain on Bush’s Failed Guantanamo Policies

McCain has weighed in on the Supreme Court’s decision in Boumediene v. Bush.  He doesn’t like it.

The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country. Sen. Graham and Sen. Lieberman and I had worked very hard to make sure that we didn’t torture any prisoners, that we didn’t mistreat them, that we abided by the Geneva Conventions, which applies to all prisoners. But we also made it perfectly clear, and I won’t go through all the legislation we passed, and the prohibition against torture, but we made it very clear that these are enemy combatants, these are people who are not citizens, they do not and never have been given the rights that citizens of this country have. And my friends there are some bad people down there.

There are some bad people. So now what are we going to do…. By the way, 30 of the people who have already been released from Guantanamo Bay have already tried to attack America again, one of them just a couple weeks ago, a suicide bomber in Iraq. Our first obligation is the safety and security of this nation, and the men and women who defend it. This decision will harm our ability to do that. (Swampland)

He’s not wrong about the badness of some of the people, but that’s not really the point.   Sadly, a little thing called ‘rule of law’ means that the good guys can’t put all the people they think might be bad guys in tiny cages for the rest of their lives without some evidence of wrong-doing.  The suspicion that they might do bad things if you let them out isn’t enough. 

Dangerous?  Yes.  But this is ‘the home of the brave,’ is it not? We are people who will do the right thing because it IS the right thing even when we’re afraid of the consequences to ourselves, are we not? Aren’t we?

Speaking for Americans who will answer ‘yes’ — which seems to exclude John McCain and a number of his fellow Republicans—Avedon Carol writes:

It’s still hard to believe we’ve descended to the point where we’re relieved when the United States Supreme Court rules in favor of a restraint on the executive that is clearly spelled out in the United States
Constitution, rather than marching in the streets to protest the fact that four of its members actually failed to join the majority…. [emphasis added]

Barack Obama’s reaction is the right one for a citizen of the land of the free:

Today’s Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court’s decision is a rejection of the Bush Administration’s attempt to create a legal black hole at Guantanamo – yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.

Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to
do so as we defend the freedom that violent extremists seek to destroy. We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach. I voted against the Military Commissions Act because its sloppiness would inevitably lead to the Court, once again, rejecting the Administration’s extreme legal position. The fact is, this Administration’s position is not tough on terrorism, and it undermines the very values that we are fighting to
defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values. [NYT]

As many people have pointed out, the reason that Bush’s policy in Guantanamo is now ‘in disarray‘ is entirely Bush’s fault.   

Sen. Arlen Specter (Pa.), the ranking Republican on the Judiciary Committee, said the limited information made public so far about the detainees’ cases has been unconvincing.

"I think that while there are still tremendous concerns about a terrorist threat, the administration has not made its case that the people in Guantanamo really are threats," he said in an interview.

Others fault the administration for not pursuing a more pragmatic detention policy that recognized the Supreme Court’s clear interest in more congressional involvement and meaningful legal rights for detainees. Lawyers inside and outside the administration warned the White House that it needed to move more aggressively to placate the
justices.

"The court might have upheld a statute like this five years ago," said Martin S. Lederman, an associate professor at Georgetown University Law Center and former Justice Department
lawyer. Administration officials "have made the court much more hostile and skeptical of the president and his wartime judgment than they ever had to. There was incredible goodwill and deference six years ago, and they squandered it."

As The New York Times explains, Bush’s creation of a separate and parallel system for detainees was ‘unprecedented.’   And it isn’t as if the government has provided the detainees with swift justice.

More than six years after the administration began flying suspected al-Qaeda and Taliban members to Cuba, confusion and uncertainty now cloud the operations at Guantanamo Bay: Only one detainee has received a verdict [and] hundreds have had no opportunity to challenge their detention…..

But of the 270 still detained there, about half are considered too dangerous to release, even though the government does not have enough evidence to charge them — presenting a serious dilemma to presidential candidates John McCain and Barack Obama, both of whom have promised to shut down the facility if elected. [NYT]

And now, of course,  ‘the government is facing a flood of new litigation invited by the court.’ [NYT] 

Yes, it’s a problem — but one which requires a solution worthy of a civilized nation.  You can’t hold a criminal indefinitely without evidence, no matter how dangerous.  In a civilized nation, and certainly according to our own [previous] view of our meaning and standing in the world, the principle of due process of law has always trumped the notion that we have the right to imprison people who frighten us without sufficient evidence to charge them with a crime.

It’s always instructive to see how the Right —and McCain has repeatedly shown that’s where he stands, if only they will elect him President!— react whenever the Court makes a decision that scares them….and let’s face it, they are terribly, terribly afraid.  Their first reaction is always to scream about ‘unaccountable judges,’ as if that weren’t the whole point of the judiciary — not to be accountable to partisan political concerns.