McCain's Guantanamo Statement, Annotated

Swampland has the most complete, but not completely complete, version of John McCain's statement on the Boumediene v. Bush I've been able to find. While the "one of the worst decisions" tag has gotten the most play, the whole statement is a disgrace. Here it is, with my thoughts in footnotes. And if you don't want to go all the way through it, the most important bit is in footnote 7.

The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions¹ in the history² 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 them³, 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 combatants², these are people who are not citizens, they do not and never have been given the rights that citizens of this country have⁴. And my friends there are some bad people down there. There are some bad people.⁵ So now what are we going to do. We are now going to have the courts flooded with so-called, quote, Habeas Corpus suits against the government, whether it be about the diet, whether it be about the reading material⁷. And we are going to be bollixed up in a way that is terribly unfortunate, because we need to go ahead and adjudicate these cases⁸. 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.

¹McCain has made clear for some time that he intends to demagogue the courts. It's good strategy. In doing so he winds dog whistles to the base in terms that the center doesn't find too offensive. But he does love him some hyperbole. For example in responding to a Federalist Society inquiry about how he would pick judges, he said "I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench."

²I hope at some point some enterprising reporter asks McCain what the other worst decisions ever would be. Certainly we can expect Roe v. Wade to top the list, and anti-Roe folks have long linked Roe with Dred Scott in the pantheon of badness (which is bull for reasons too complicated to go into now.) On the other hand, for both long-term damage and the Court's brazen insistence that day is night, it's hard to beat Plessey v. Ferguson. Given the conservative cottage industry in debunking Brown, it's hard to imagine him going there. Similarly, he presumably wouldn't include Koromatsu in which the Court said the government could inter Japanese Americans on the West Coast because the military said they wanted to.

³Plenty of reports suggest that this great effort on McCain's part was less than an unqualified success.

⁴If Tom Blumer were serious about his "objectively unfit" business, he would declare McCain objectively unfit based on this statement. Neither the legislature nor the executive decides who is an enemy combatant. That's the whole freaking point. Imagine a Presidential candidate complaining about an eminent domain decision thusly: "We made it clear that the property was worth $5000 an acre." The right would go insane over such hubris, and such a fundamental lack of understanding about how our democracy works.

⁵This is a false dichotomy. The question isn't full rights of citizens versus only having the right to be free from torture that McCain magnanimously granted. Habeas is far less that the former, and far less than the latter.

⁶And there are some innocent people. The problem is that we haven't established a reliable process for separating the bad from the innocent.

⁷This is where things get scary in the "John McCain is either extravagantly dishonest or deeply confused" sense of scary. Habeas Corpus has nothing to do with the conditions of internment. The Court granted no such rights to sue. A writ of habeas corpus simply compels the government to produce the person being held before a judge and explain the circumstances that gives the government the right to hold him. That's it. That simple, basic protection of personal liberty is all that was at stake in this case, and that's what McCain would deny the people we are detaining. McCain's bollixing that up with lawsuits about diet is unconscionable, as is the media's failure to call him on it.

⁸This is absurdity. He's implying that the decision is bad because it will slow down adjudications that the government wants to get on with. In fact, the Court's decision noted repeatedly that government's practice has been to put off adjudication for as long as possible. McCain may or may not think that "we need to go ahead and adjudicate these cases" but the administration disagrees.

⁹It's an open question how many of those were bad guys all along and how many were radicalized by being mistreated by the U.S. and housed with jihadists. Of course the administration has actually floated the idea in the past that we can't release innocent detainees because of the possibility they have been radicalized which as a standard is too horrible to contemplate.