Guantanamo and A Tale of Two Campaigns

Middle vs. Left = Muddle

By Dan McLaughlin Posted in | | | | | Comments (15) / Email this page » / Leave a comment »

As Chief Justice Roberts pointed out, the core issue in today's detainee decision is the struggle between the power of Congress and the power of the courts: it's not whether the U.S. has the right to detain enemy combatants, and not whether non-U.S. citizen detainees have access to legal process to challenge their detention, but simply whether Congress has a right to define and limit those procedures (as it did by statute in 2005 and 2006), or whether the Supreme Court has absolute authority to require that all procedural rules be determined by the district courts and reviewed by the Supreme Court. For this President and his successor, however, the bottom-line question remains what to do with enemy combatants: continue to hold them at Guantanamo or some similar facility subject to the new procedures, go back to Congress for yet another set of rules, or perhaps ship more detainees off to other countries to handle in their own way.

In a serious world, we'd expect presidential candidates to present competing visions of how to answer both sets of questions. But the responses of the McCain and Obama campaigns to today's decision shows that each is too busy struggling in their own ways with the politics of this issue to address it meaningfully.

Read On...

Let's start by noting the fact that the two statutes struck down by the Court today were passed by the U.S. Senate, in which both candidates sit. The Detainee Treatment Act of 2005, a rider to military appropriations, among other things provided a set of procedures, and limited judicial review, for detainees challenging their enemy combatant status. It passed 90-9, with both McCain and Obama voting in favor. The Court today held "those procedures are not an adequate and effective substitute for habeas corpus." The Military Commissions Act of 2006 specifically precluded the DTA's procedures from being evaded by recourse to habeas corpus review, and eliminated the Supreme Court's jurisdiction over such cases; it passed 65-34, with McCain voting in favor and Obama voting against. The Court held today that the MCA "operates as an unconstitutional suspension of the writ."

How did the candidates respond to the decision? First, the McCain response, as related by Michael Goldfarb at the McCain Report (the excellent official campaign blog):

SEN. JOHN MCCAIN: It obviously concerns me. These are unlawful combatants, they are not American citizens, but -- and I think that we should pay attention to [Chief J]ustice Roberts' opinion in this decision -- but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantanamo Bay and I still think that we ought to do that.

McCain's position has always been that these people do not "deserve the protections of the kind of judicial process that a citizen of the United States would have." This is also the position of Chief Justice John Roberts, who dissented from today's ruling, noting that the process already in place included "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

The rest of Goldfarb's post smacks Obama for voting against Roberts. You can tell that Goldfarb would like to go harder after the Court's decision, but the campaign and the candidate are constrained by McCain's own Gitmo-bashing, and so while McCain's response sides with Roberts and the statutes McCain voted for, it has to be somewhat muted on the pragmatic consequences of the decision because McCain isn't really clear on what he himself would do with those detainees.

Obama, meanwhile, is off in his own little world, unconstrained by the facts but therefore unwilling or unable to confront McCain over McCain's actual position:

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.

It's not clear what Obama means here. First, if the DTA's procedures are themselves "a legal black hole," and if he agrees with the Court that they are inadequate to satisfy due process, why on earth did Obama vote for them? Second, he's ripping McCain for "support" of Bush's Guantanamo policy, completely ignoring the fact that McCain has been calling for some time for shuttering the place - part of Obama's strategy of pretending away McCain's actual record. Third, if Obama means that McCain "supported" Bush's policy by voting for the DTA and the MCA, what about Obama's own vote for the DTA?

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Guantanamo and A Tale of Two Campaigns 15 Comments (0 topical, 15 editorial, 0 hidden) Post a comment »

... is that this is not the DTA that he used to know.

Why would God invent something like whiskey? To keep the Irish from ruling the world of course.

"the core issue in today's detainee decision is the struggle between the power of Congress and the power of the courts"

I disagree. I agree with Justice Scalia - the key issue here is that, for the first time ever, we are expanding the right of habeas to persons held outside the US who have no actual connections to our nation. This is a blatant deviation from the hundreds of years old history of the habeas writ. The Supreme Court majority has, in this case and in Rasul, overruled Eisentragger, a case directly on point, and has basically invented a new right for non-citizens who are enemies of our country. Our nature will come to regret this decision.

Chief Justice Roberts argument, which is probably also true, is actually a lesser issue.

Roberts is right and the most important part, The power of the Congress over the courts. Are the statutes in 05 and 06 valid or does the Supreme Courts have Absolute power over this and the other war time rule? This is a test case. Bush is next when they put the rubber stamp Obama in. Congress will start the war crime trials. We will have no commander or veto in the White House. The Chickens will then come home to roost. This Republic is soon to be unrecognizable if not there already and is about to be lost. What about the terrorist we handed over to other nations and are holding in other countries. The slippery slope is Liberalism. It embraces any “Isms” as to seek power. Bush and the Repubes should have impeached a few associate justices when they could.

and pray you're not, there will be blood in our streets.

While I AGREE with today's majority opinion that "all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield, [but] over which the United States exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court," I also AGREE with Chief Justice Roberts (and his fellow dissenters) that the Writ can be suspended in time of war, such as the war on terror that we find ourselves involved in right now, and that suspension power belongs to Congress, such as Congress has exercised in this case, "as the Constitution surely allows Congress to [wield]."

With malice towards none, with charity for all, with firmness in the right as God gives us to see right.

Art. 1, Sec 9

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."

Some impressive mental gymnastics are required to view the current conflict as a rebellion or invasion, as opposed to merely a "time of war".

So representatives of a foreign organization, intedning to enter this country in order to commit hostile acts does not constitute invasion?

How can you say we haven't been invaded? There are no doubt a lot of foiled plots we know nothing about that could not have come about butfor the interrogation of those evil bastards in GITMO. Am I to presume that you feel we haven't been invaded, and that the twin towers was just an isolated incident? Your post is shockingly devoid of any real grasp on reality. I'd be embarrassed if I were you.
Tim Schieferecke

Greenwave implies that a body count threshold needs to be reached to qualify as an invasion or harm to the citizens.

Since 911 doesn't make it....

How about a nuke that takes out Houston, Washington or LA?

Oh wait.... then it would be to late!!!

"So representatives of a foreign organization, intedning to enter this country in order to commit hostile acts does not constitute invasion?"

A hypothetical what if scenario isn't an invasion. All it is is a assumption made by yourself.
You assuming what people tend to do does not equal an invasion, it is in fact a prediction.
And by the way a wide majority of the people in Gitmo. aren't even remotely connected to foreign organizations that are anti-American such as Al-Queda.

"...interrogation of those evil bastards in GITMO."
Sorry but calling random innocent people picked up of the street as evil is a stretch.
Torture or interrogation isn't to effective, well at least according to report by our own government.
Since when did attacks become invasions?

Which of those events would you label as hypothetical?

We are less safe after this decision ... because of Scalia's dissent.

Just check the LA Times if you don't believe me.,0,7314680.sto...
Obama's guiding principle: "I reserve the right to revise and extend my remarks."

"Which of those events would you label as hypothetical?"

This one: "So representatives of a foreign organization, intedning to enter this country in order to commit hostile acts does not constitute invasion?"

Trolls are bad enough, but ones that apparently can't read their screens - not worth the time.

So you response is to call yourself a troll, eh I guess you can do that if you want.

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